Madhya Pradesh High Court
Jitendra Uikey vs The State Of Madhya Pradesh on 1 August, 2023
Author: Vishal Mishra
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
CRIMINAL REFERENCE (CAPITAL PUNISHMENT)
No.16 of 2018
BETWEEN:-
IN REFERENCE
RECEIVED FROM SESSIONS JUDGE,
RAISEN (M.P.)
.... APPELLANT
(BY SHRI S.S. CHOUHAN - PUBLIC PROSECUTOR)
AND
JITENDRA UIKEY S/O SHRI KISHANLAL UIKEY,
AGED ABOUT 24 YEARS, R/O SANTOSH JIJA KA
MAKAN GRAM NAYAPURA SODARPUR THANA
OBEDULLAGANJ TEHSIL GOUHARGANJ
DISTRICT RAISEN (M.P.) PERMANENT ADDRESS
GRAM JHIRANYAPURA THANA RAISEN DISTT.
RAISEN (M.P.)
.... RESPONDENT
(BY SHRI AKASH CHOUDHARY - ADVOCATE AS AMICUS CURIAE)
AND
CRIMINAL APPEAL No. 9023 of 2018
BETWEEN:-
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VISHWAKARMA
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2
JITENDRA UIKEY S/O SHRI KISHANLAL UIKEY,
AGED ABOUT 24 YEARS, R/O SANTOSH JIJA KA
MAKAN GRAM NAYAPURA SODARPUR THANA
OBEDULLAGANJ TEHSIL GOUHARGANJ
DISTRICT RAISEN (M.P.) PERMANENT ADDRESS
GRAM JHIRANYAPURA THANA RAISEN DISTT.
RAISEN (M.P.)
.... APPELLANT
(BY SHRI AKASH CHOUDHARY - ADVOCATE AS AMICUS CURIAE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION OBEDULLAGANJ DISTRICT
RAISEN (M.P.)
.... RESPONDENT
(BY SHRI S.S. CHOUHAN - PUBLIC PROSECUTOR)
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Reserved on : 22.06.2023
Pronounced on : 01.08.2023
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This criminal reference as well as the appeal having been heard
and reserved for judgment, coming on for pronouncement this day,
Hon'ble Shri Justice Vishal Mishra passed the following:
JUDGMENT
This judgment shall govern the disposal of death reference and
criminal appeal as they arise from the judgment dated 27.10.2018
passed by the Additional Sessions Judge, Gauharganj District Raisen in
Special Case No.24 of 2018, whereby accused-Jitendra (hereinafter
referred to as the 'appellant') has been convicted and sentenced as
under -
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Conviction Sentence
Under Section 366 of IPC Rigorous imprisonment for 10 years and
fine of Rs.500/- and in default, to suffer
one month imprisonment.
Under Section 376(2)(j) of Imprisonment for life and fine of Rs.500/-
IPC and in default, to suffer one month
imprisonment.
Under Section 376(2)(m) Imprisonment for life and fine of Rs.500/-
of IPC and in default, to suffer
one month imprisonment.
Under Section 376AB of Death sentence
IPC
Under Section 376A of IPC Death sentence
Under Section 302 of IPC Death sentence and fine of Rs.500/- and
in default, to suffer one month
imprisonment.
Under Section 201 of IPC Rigorous imprisonment for 7 years and
fine of Rs.500/- and in default, to suffer
one month imprisonment.
Under Section 5n/6 of the Imprisonment for life and fine of Rs.500/-
Protection of Children and in default, to suffer one month
from Sexual Offences Act, imprisonment.
With the direction that the custodial sentences shall run concurrently
2. The prosecution case is briefly stated as under :-
(i) A missing complaint (Ex.P/1) has been lodged by the
father of the deceased-victim (PW1) on 14.08.2018 to the
effect that his minor daughter aged about 7 years is missing
since the evening of 13.08.2018. She went to her Dadi's
house namely Ghisiya Bai (PW3) on 13.08.2018 at 5 p.m.
for playing. Dadi's house is situated near his residence. On
14.08.2018, when he came back from the work, his wife
(PW2) apprised him that their minor daughter had gone to
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Dadi's house for playing but did not return back home. On
enquiring from Dadi, it came to the knowledge that the
appellant who was known to the victim as a distant relative
took her for giving toffee and thereafter when he was asked
about the details regarding the victim, he stated that after
purchasing and giving toffee to her, he has left the victim at
Dadi's house. Despite search being made, she could not be
traced out. Thereafter, an FIR was registered as Crime
No.406 of 2018 for the offence under Section 363 of IPC at
Police Station Obedullaganj District Raisen (Ex.P/38)
against unknown person. The matter was taken up and
investigated.
(ii) During the course of investigation, the shopkeeper
Saurabh (PW4) was interrogated and he informed that the
appellant never came to his shop with the girl child for
purchase of toffee. Thereafter, the appellant was again
called for interrogation and in his memorandum recorded
under Section 27 of the Evidence Act (Ex.P/4), he has
admitted the fact that he took the victim on the pretext of
purchasing toffee for her, took her to a nearby jungle,
committed rape on her and thereafter, by pressing her neck,
killed her and hid the dead body in the jungle. Statements
of witnesses under Section 161 of CrPC were recorded.
(iii) On the basis of appellant's memo under Section 27
of the Evidence Act and with his help, the dead body of the
victim was found for which entire videography was got
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conducted on the spot and the same was produced along
with the certificate under Section 65B of the Evidence Act.
After recovery of the dead body of the victim, inquest
proceeding was done and thereafter the same was sent for
post-mortem examination. Autopsy Surgeon Dr. Vinay
Prabha (PW14) found injuries on the private parts of the
victim and gave a finding regarding commission of rape as
well as death to be homicidal in nature caused by
strangulation. Therefore, the offences under Sections
376AB, 302, 201 of IPC and Section 5m/6 of the POCSO
Act were added in the case.
(iv) Upon conclusion of the investigation, charge sheet
was filed and charges were framed against the appellant to
which he pleaded not guilty and claimed to be tried.
During the trial proceedings, the prosecution examined as
many as 28 witnesses and exhibited documents marked as
Ex.P/1 to Ex.P/58. Then the appellant was examined under
Section 313 of CrPC. His defence was that of innocence
and false implication by the police.
(v) After conclusion of the trial, the learned trial Court
arrived at a conclusion that the appellant was guilty of the
commission of aforesaid offences and accordingly he was
convicted and sentenced in the manner as indicated above.
With regard to capital punishment/death penalty, the
present reference is being made to this Court for
confirmation of death penalty.
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(vi) The accused-appellant has also preferred the
criminal appeal against the impugned judgment of
conviction which is taken up for consideration along with
the death reference.
3. Shri Akash Choudhary, Advocate who has been appointed as
amicus curiae to argue the death reference has consented for arguing
the criminal appeal filed on behalf of the appellant-accused.
4. It is argued by the learned amicus curiae that the entire case is
based upon circumstantial evidence, last seen evidence and recovery of
dead body of the girl child at the instance of the appellant. The
appellant has been arrayed in the case merely on the basis of memo
prepared under Section 27 of the Evidence Act and on the basis of
recovery of the dead body at his instance. But, the recovery of the body
at the instance of the appellant is doubtful because as per the dehati
nalishi which is recorded by the father (PW1) on 14.08.2018 at 23:45
Hrs. (Ex.P/2) wherein it is mentioned that his daughter was missing
since the evening of 13.08.2018 when her grandmother had taken her to
her house and thereafter on 14.08.2018, the appellant took her from
Dadi's house to deliver her to father's house. The appellant gave a
statement that he took the victim, bought her a toffee and left her in
front of Dadi's house. On the basis of the aforesaid, an FIR was
registered as Crime No.79 of 2018 at Police Outpost Goharganj for the
offence under Section 363 of IPC against unknown person. During the
investigation, a suspicion was drawn upon the appellant as he has given
a disclosure statement under Section 27 of the Evidence Act on
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16.08.2018 at 14:30 Hrs. (Ex.P/4) wherein he has stated that he
committed the offence with the victim and the dead body was hidden in
the jungle and he shall lead the police party to the spot to recover the
body. The police authorities went to the spot and recovered the dead
body for which seizure memo (Ex.P/5) was prepared at 15:30 Hrs. on
16.08.2018.
5. It is his case that if the entire case of the prosecution is believed
as it is, then the fact regarding the information being received to G.S.
Narvariya Scientific Officer (PW15) who was summoned by the police
authorities arrived at the spot on 16.08.2018 and performed forensic
analysis of the crime scene. He has admitted in his chief examination
that on 16.08.2018 at 1 p.m. in the afternoon Station House Officer of
Police Station Obedullaganj namely K.S. Mukati (PW28) informed him
that the dead body of the victim was lying in the forest nursery located
within the jurisdiction of Goharganj Police Outpost (Chowki). The
aforesaid aspect is unexplained by the prosecution in the entire case.
Thus, the very information regarding the dead body lying in the jungle
cannot be stated to be given by the appellant for the first time on
16.08.2018 at 14:30 Hrs. The Scientific Officer (PW15) was already
having an information about the same at 1 p.m. and he was available on
the spot for analysis of the crime scene. This itself creates a serious
doubt over the prosecution story to the extent that the police authorities
were having information of the dead body of the victim prior to his
disclosure statement. The entire case is based upon the circumstantial
evidence as well as the last seen theory but the fact remains that from
the date of missing of the victim till the recovery of the dead body,
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there is a gap of nearly five days and looking to the fact that the so-
called recovery at the instance of the appellant could not be proved by
the prosecution as Scientific Officer G.S. Narvariya (PW15) has
admitted in his examination-in-chief that he was given the information
regarding the location of dead body on telephone at 1 p.m. on
16.08.2018. Therefore, the very genesis of connecting the appellant
with murder of the girl child and rape could not be made out in view of
the settled proposition of law that the time period from the date of
missing till recovery of the dead body should have been explained by
the prosecution and there should not be any unexplained link between
the two. It is argued that the prosecution has not been carried out in a
fair and impartial manner. He has placed reliance upon the decision of
the Hon'ble Supreme Court in the case of Bhalinder Singh vs State of
Punjab (1994) 1 SCC 726.
6. It is further argued that Scientific Officer G.S. Narvariya (PW15)
has neither been declared hostile nor there is any re-examination to the
aforesaid aspect. Therefore, the prosecution version has to be accepted
that he came to know about the body of the girl child on 16.08.2018 at
1 p.m. from SHO K.S. Mukati (PW28). Learned amicus has further
relied upon the judgments of the Hon'ble Supreme Court in the cases of
Raja Ram vs State of Rajasthan (2005) 5 SCC 272 and Assoo vs State
of M.P. (2011) 14 SCC 448 to the effect that under such circumstances,
the prosecution version has to be accepted.
7. The second argument which is being advanced is based upon the
memorandum of the appellant recorded under Section 27 of the
Evidence Act by the police authority (Ex.P/4).
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8. It is argued that this is the key document (Ex.P/4) on which the
entire case of the prosecution is based upon. It is a disclosure statement
made to the police authorities. The learned amicus has drawn attention
of this Court to the definition of Section 27 of the Indian Evidence Act
to the effect that the statement recorded under Section 27 shall make it
evident that unless and until, an object is discovered on the basis of an
alleged information supplied by a person, the same is not admissible. It
is argued that as per the prosecution story, there was information of the
dead body prior to recording of disclosure statement of the appellant.
Therefore, it cannot be said that there is recovery of the body at the
instance of the appellant. He has placed reliance upon the testimony of
SHO K.S. Mukati (PW28) and also the statement of Scientific Officer
G.S. Narvariya (PW15). Placing reliance upon the judgments rendered
by the Hon'ble Supreme Court in the cases of Krishan Mohar Singh
Dugal vs State of Goa (1999) 8 SC 552, State of Haryana vs Jagbir
Singh (2003) 11 SCC 261 and Vijender vs State of Delhi (1997) 6 SCC
171, it is argued that there was virtually no connecting link to complete
the chain of circumstances as far as the appellant is concerned.
Therefore, the entire prosecution story is falsified as there is no
eyewitness to the incident.
9. The third argument which is being raised by the counsel
appearing as an amicus curiae is based upon the DNA report (Ex.P/50).
10. The learned Additional Sessions Judge has heavily relied upon
the said report and observed that the DNA report is a clinching proof
against the appellant and clearly shows that the offence was committed
by him. However, the manner in which the samples were collected,
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sealed and sent for forensic examination is itself doubtful. It is argued
that there is admission on the part of the Investigating Officer that he
has not sealed the samples while sending them to the forensic
examination. It is further submitted that no seals were sent to the
forensic, therefore, it cannot be said that the samples which were
collected were the same which have been sent for forensic examination.
The prosecution placing heavy reliance upon the DNA report was
required to clearly establish the seizure of articles from the victim as
well as from the accused, sealing of the articles as well as sending them
to forensic expert in a sealed manner. In absence of specific evidence
being brought on record by the prosecution to the aforesaid effect, the
report which has been received is itself doubtful and the conviction
cannot be based upon such report.
11. The counsel appearing as an amicus curiae has further relied
upon the judgment of the Hon'ble Supreme Court in the case of
Mukesh vs State (NCT of Delhi) (2017) 6 SCC 1 to establish that there
had been no quality control or quality assurance or if there is any
evidence of tampering of samples, the DNA report cannot be accepted.
It is argued that the first sample was seized from the accused on
16.08.2018 at 9.15 p.m. which includes semen slides, pubic hair and the
other articles of the accused which was taken by Dr. K.P. Yadav
(PW25) and seized by SHO K.S. Mukati (PW28). However, there is no
Namuna seal (seal sample), therefore, it clearly shows that the articles
were not sealed when they were handed over to the SHO. He has
further drawn attention of this Court to the statement of Dr. K.P. Yadav
(PW25) wherein he was put a specific question regarding the same and
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he has given a lame explanation that although in the medical report
(Ex.P/41), there is no mentioning of the fact that semen slides were
sealed but he has submitted that it were included in the process itself.
There is no evidence regarding custody or storage of the seized articles,
by whom and where they were kept until they were dispatched to
Forensic Science Laboratory on 19.08.2018. No evidence has been
produced to establish that the articles of the accused were kept in
Malkhana or any other safe place. There is no evidence on record to
show that which seals were put by the Doctor and which seals were put
by the SHO and which seals were actually found in the Forensic
Science Laboratory. The seals which were sent to the Forensic Science
Laboratory have not been identified. It is argued that they cannot be
automatically accepted. They are required to be matched with the
sealed samples but no such proceedings have been drawn. Moreover,
the constable or the police officer who took the articles to the
laboratory has not been examined by the prosecution as a witness. As
such, there is a missing link from seizure of articles to sending it to the
laboratory. Thus, the entire chain of circumstances is not complete. For
this, he has placed reliance upon the judgment of this Court in Vijay
Singh vs State of M.P. 2004 (4) MPLJ 543 and has argued that it was
incumbent upon the prosecution to prove the seized articles that the
seized articles had remained intact since the time they were taken into
custody by the prosecution to the time they were received by the
chemical examiner. Further, he has placed reliance upon the judgment
passed by the Hon'ble Supreme Court in the case of Mahmood vs State
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of U.P. AIR 1976 SC 69 wherein it is held that after sealing the parcel
the seal should not remain with the investigation agency.
12. Similar was the situation while seizing the articles from the
deceased, therefore, adverse inference in terms of Section 114 of the
Evidence Act has to be drawn as the prosecution has deliberately
concealed the articles from the court. The prosecution has not produced
the Malkhana register nor the Malkhana In-charge was examined to
establish the safe custody of the articles and to rule out the possibility
of tampering. Mere oral testimony is not sufficient to prove that the
articles were deposited in the Malkhana. For this, learned counsel
appearing as an amicus curiae has placed reliance upon the judgment
rendered by the Supreme Court in the case of State of Rajasthan vs
Gurmail Singh (2005) 3 SCC 59.
13. Another argument is raised with respect to delay in sending the
samples. The samples from the accused and the deceased were obtained
on 16.08.2018 and they were not sent to Forensic Science Laboratory
immediately but waited till the blood samples of the accused were
obtained on 19.08.2018. The dispatch memo (Ex.P/31) mentions about
dispatch of two different samples, each having 2.5 ml but both were not
separately marked. The laboratory report does not mention receiving of
two samples. Thus, the entire prosecution story is vitiated owning to the
fact that from seizure of articles till preparation of the DNA report, the
prosecution appears to have cooked a story as they failed to explain the
sealing of samples and recovery of any seal by the forensic laboratory.
Thus, the entire prosecution story is vitiated and under such scenario,
the accused cannot be convicted.
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14. The next argument is raised with respect to last seen theory. As
per the prosecution, the appellant was last seen with the deceased in the
evening of 13.08.2018 and the dead body was recovered on 16.08.2018.
Thus, there is a huge gap between the date of last seen and the recovery
of the dead body. As per prosecution, the appellant-accused was last
seen with the girl child on 13.08.2018 and her dead body was recovered
on 16.08.2018. There is a gap of 3-4 days. Therefore, it would not be
safe to convict the appellant on the basis of last seen theory alone. It is
argued that last seen theory is an important link in the chain of
circumstances that would point out towards the guilt of the accused. It
has to be established by leading cogent evidence. He has placed
reliance upon the judgment passed by the Hon'ble Supreme Court in
the case of Nizam vs State of Rajasthan (2016) 1 SCC 550 and has
argued that where time gap is long, it would be unsafe to base the
conviction on the last seen theory. It is safer to look for corroboration
from other circumstances and the evidence adduced by the prosecution.
He has further placed reliance upon the judgment passed by the
Hon'ble Supreme Court in the case of Ramreddy Rajesh Khanna Reddy
vs State of A.P. (2006) 10 SCC 172 wherein it is held that even in the
case where time gap between the point of time when the accused and
the deceased were last seen alive and when the deceased was found
dead is too small, the possibility of any person other than the accused
being the author of the crime becomes impossible and the court should
look for some other corroboration. Under these circumstances, it is
argued that the appellant has been falsely implicated in the case. He has
not committed any offence in any manner. The learned trial Court has
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committed an error in convicting the appellant and holding him guilty
of the offences as mentioned in para 1 above and imposing death
penalty along with other punishments as there is no cogent and credible
evidence available on record coupled with the fact that the entire case is
based upon the circumstantial evidence and the evidence which led by
the prosecution also does not complete the chain of circumstances and
the fact that there is no explanation with respect to collecting of
samples and sealing it which vitiates the DNA report and looking to the
time gap between the last seen and the recovery of the dead body, the
appellant could not have been convicted with death penalty, rather he
should have been acquitted of all the charges as the prosecution has
failed to make out a case against the appellant.
15. The counsel appearing as an amicus curiae has further argued
that for the purpose of DNA report, when the accused was examined
under Section 313 of CrPC, he was not explained regarding the DNA
report and his conviction being based on that report. The aforesaid
provisions are mandatory in nature and were required to be complied
with by the authorities prior to arriving at any conclusion. This itself
makes the entire prosecution story as doubtful. He has placed heavy
reliance upon the judgments in the cases of Raju vs State of M.P. 2001
SCC OnLine MP 425, Sukhkit Singh vs State of Punjab (2014) 10 SCC
270, Bhalinder Singh vs State of Punjab (1994) 1 SCC 726, Bharat vs
State of M.P. (2003) 3 SCC 106, Kanhaiya Lal vs State of Rajasthan
(2014) 4 SCC 715 and Malleshappa vs State of Karnataka (2007) 13
SCC 399.
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16. Per contra, learned Public Prosecutor has vehemently opposed
the contentions and has supported the impugned judgment of
conviction. It is argued that there is sufficient evidence available on
record against the appellant. It is contended that there is no dispute with
respect to the age of the victim. On the date of incident i.e. 13.08.2018
she was less than 4 years. The missing report was filed at the behest of
her father. The FIR was registered on 14.08.2018 on the statement
made by the father. It is submitted that the father has been examined as
PW1 and he has categorically stated that he was informed by the
appellant that he dropped the deceased-victim in front of Dadi's house
after getting her toffee then he went away. The statement of Dadi
namely Ghisiya Bai (PW3) reveals that the accused dropped the
deceased near the wall on the road. The statement of the shopkeeper
Sourabh was recorded as PW4. He categorically stated that the
appellant did not come to his shop with the girl child on 13.08.2018 for
purchasing toffee, rather he came alone on 14.08.2018 to purchase
Rajshree gutkha. Thus, the statement made by the appellant was found
to be false. Thereafter, he was again interrogated. His statement under
Section 27 of the Evidence Act was recorded on 16.08.2018 at 14.30
Hrs. wherein he has made a disclosure regarding commission of
offence by him and he has further stated that he would lead the police
party so that they may recover the dead body which was hidden by him
in the jungle. Thereafter, at his instance, the dead body of the girl child
was recovered on 16.08.2018 at 15:30 Hrs.
17. The argument regarding the information of dead body of the
victim at the instance of appellant and the information given to the
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Scientific Officer of the forensic laboratory was made to point out that
the SHO has already given information with respect to the dead body to
the Scientific Officer on 16.08.2018 at 1 p.m. Therefore, the police
authorities were already having the knowledge regarding the dead body
lying in the jungle at 1 p.m. Hence, it cannot be said that the appellant
was the first person to give information with respect to dead body and
at his instance, the same has been recovered. With respect to the
aforesaid, it is argued that the appellant has been interrogated on two
different occasions by the police authorities, firstly, when the
information was given that the girl child was with the appellant for
purchasing of toffee and secondly, when the statement of shopkeeper
Saurabh (PW4) was recorded and when on interrogation, he gave the
information regarding dead body lying in the jungle and he will lead
the police party to the spot. The investigation officer K.S. Mukati
(PW28) in his statement has categorically stated that as soon as the
information with respect to dead body was given by the accused, prior
to going for search of the body, he has telephoned the Scientific Officer
(PW15) and has given the information with respect of the dead body of
the girl child lying in the jungle. Scientific Officer G.S. Narvariya
(PW15) has given a statement that he received the said information on
16.08.2018 at 1 p.m. from SHO K.S. Mukati (PW28). In para 12 of
SHO's statement, he has stated that he interrogated the appellant on
15.08.2018 and in para 15 thereof, he further reiterated that on
15.08.2018, he interrogated the appellant. The appellant was left free
because he has stated that after purchasing toffee and giving it to the
child, he left her in front of her Dadi's house. It is argued that the entire
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evidence may be seen then there is no cross-examination made by the
prosecution to clarify the aforesaid aspect. If the entire statement of the
Investigating Officer and the Scientific Officer is seen, it is clear that
they were told that dead body is hidden in the jungle but no one knew
where it was hidden. It was only the accused who escorted them to the
spot where the dead body was lying. The fact remains that the body
was recovered on the basis of the disclosure's statement made by the
appellant. There is no dispute with respect to the dead body being
recovered at the instance of the appellant. Under these circumstances,
the arguments advanced before this Court are of no help to the
appellant. The learned trial Court has not committed any error in
convicting the appellant.
18. With respect to the arguments advanced creating a doubt over the
DNA report (Ex.P/50) and seizure of samples and its sealing and
sending it to the forensic laboratory is concerned, if the statement of the
investigating officer K.S. Mukati (PW28) is seen that he has
categorically stated that the samples were duly collected, they were
sealed and after obtaining the blood sample of the accused, the same
were sent for chemical examination on 19.08.2018. The Scientific
Officer G.S. Narvariya (PW15) has found the samples in a sealed
condition which is reflected from the report and the same is produced
before the Court as Ex.P/50. It is specifically mentioned in the report
that the sent samples were found in the sealed condition and the sample
of the seal was found. Thus, there was no dispute with regard to
sampling, seizing and sending it to the forensic laboratory. It is
contended that the entire evidence which has been recorded before the
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trial Court does not reflect any cross-examination to the aforesaid
effect. Therefore, no doubt can be cast upon seizures and sealing of the
articles and collection of sample. Further, the seizure memo (Ex.P/33)
clearly shows that the articles were seized, sealed and sealed samples
were kept by the police authorities. The DNA report which is received
clearly establishes the factum of deceased's sample matching with that
of the accused. The learned Public Prosecutor has drawn attention of
this Court to paragraph 6 of the impugned judgment wherein the factum
of photography and videography being done by Sheikh Nisar (PW13)
with respect to seizure of articles has been dealt with which was also
accompanied with certificate under Section 65B of the Evidence Act
(Ex.P/21 and Ex.P/22). Moreover, there is a recovery of clothes of the
deceased. Therefore, it cannot be said that the DNA report which was
found to be positive and also supported by the corroborative evidence,
could not be relied upon. A positive result of the DNA test would
constitute clinching evidence against the accused. Thus, there cannot be
any illegality committed by the learned trial Court in convicting the
appellant.
19. Another argument which is raised is with respect to the last seen
theory. The prosecution has produced three last seen witnesses namely
Mushtak (PW5), Jagdish (PW6) and Aasif (PW7) who have
categorically stated that they saw the appellant taking the girl child and
thereafter she went missing. They have not been declared hostile by the
prosecution. There is no other evidence on record to show that the girl
child was last seen with any other person except the appellant.
Moreover, recovery of dead body at the instance of the appellant,
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seizure of clothes from the possession of the appellant coupled with the
DNA report which was found to be positive establishes the guilt of the
accused. Therefore, the argument advanced with respect to the last seen
theory are also of no help to the appellant. Hence, virtually all the
arguments which have been raised by the learned amicus curiae have
been negated by the Public Prosecutor after taking this Court through
the entire evidence available on record.
20. It is further argued by the learned Public Prosecutor for the State
that the post-mortem report (Ex.P/23) which is prepared by Dr. Vinay
Prabha (PW14) clearly reflects that there were injuries on the private
parts of the girl child and she succumbed to death by strangulation and
the nature of death was reported as homicidal.
21. As far as the death penalty being awarded to the appellant is
concerned, it is argued that all the factors such as aggravating
circumstances, mitigating circumstances and the tests to be applied viz.
'crime test', 'criminal test' and 'R-R test' are seen then the case falls
under the category of the 'rarest of the rare case'. The age of the victim
was below 4 years and the accused was aged about 24 years. He was
known to the victim and taking advantage of the same, has taken her
for the sake of purchasing the toffee, took her to the jungle and
committed the offence. The manner in which the offences have been
committed is a glaring example of heinousness and brutality on a small
child of four years who under the good faith and belief of the accused
accompanied him on being given an allurement of buying her a toffee.
Thus, this is a case where the crime against the female child has been
committed with brutality and is virtually a crime against the society at
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large. Finding all the factors against the appellant and considering the
theory of 'residual doubt' and the state of mind of the accused, the
learned trial Court has rightly arrived at a conclusion that it is a fit case
of imposition of capital punishment. He has prayed for upholding the
capital punishment and dismissal of the appeal preferred by the
accused-appellant.
22. To buttress his submissions, the learned Public Prosecutor has
placed reliance on the decisions rendered in the cases of State of U.P. vs
Deoman Upadhyaya AIR 1960 SC 1125; Machhi Singh vs State of
Punjab, (1983) 3 SCC 470; Sharad Birdhichand Sarda vs State of
Maharashtra, (1984) 4 SCC 116; State of U.P. vs Satish, (2005) 3 SCC
114; Vikram Singh vs State of Punjab, (2010) 3 SCC 56; Mohd. Arif vs
State (NCT of Delhi), (2011) 13 SCC 621; Nar Singh vs State of
Haryana, (2015) 1 SCC 496; Yogesh Singh vs Mahabeer Singh, (2017)
11 SCC 195 and C. Muniappan vs State of T.N., (2010) 9 SCC 567.
23. Heard the learned counsels of the parties and perused the record.
24. From the perusal of the record, it is seen that the age of the
victim was 4 years at the time of commission of offence. The girl child
was missing since 13.08.2018 and the report to that effect (Ex.P/1) was
lodged by the father of the victim (PW1) on 14.08.2018 on 23.55 Hrs.
on the basis of which an FIR being Crime No.406 of 2018 (Ex.P/38)
was got registered against the accused. The father of the deceased
(PW1) has informed the police authorities regarding the fact that the
accused had dropped the deceased in front of the house of grandmother
after getting her toffee and went away.
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25. As per the father (PW1), the child went to her grandmother's
house for playing and she was taken away by the accused to leave her
to her parental house and when the accused was asked about the same,
he gave a statement that he had dropped the child after purchase of
toffee in front of her grandmother's house and then he went away. This
is how the appellant was introduced in the prosecution. The
investigating agency went ahead and interrogated the shopkeeper
Saurabh (PW3) who has categorically stated that the accused did not
come with any girl child to get toffee with her. Thereafter, the accused
was again called for and interrogated by the police authority. He again
reiterated the same and stated that he has dropped the girl child back to
her grandmother's house and went away for doing work but when he
was made aware of the statement of the shopkeeper then he has made a
disclosure statement to the police authorities which is recorded under
Section 27 of the Evidence Act on 16.08.2018 at 14:30 Hrs. which is
exhibited as Ex.P/4 wherein he has categorically stated as under :-
**eSusa LoSPN;k iqfyl vfHkj{kk esa dFku fn;k fd fnukad 13-08-
2018 dks lwjt dh csVh fu'kk dks f?kfl;k nknh larks"k thtk ds ?kj ls
VkWQh fnykus ds cgkus ysdj x;k Fkk] fu'kk dks xkSgjxat ds lkeus
taxy esa ys tkdj mlds lkFk xyr dke ¼cykRdkj½ fd;k vkSj xyk
nckdj mls tku ls ekjdj yk'k dks taxy esa gh Nqik fn;k gS] pyks
pydj fu'kk dh yk'k cjken djk;s nsrk gw¡ A**
26. On the basis of this disclosure statement made by the appellant,
the offences under Sections 376AB, 302, 201 of IPC and Section 5m/6
of the POCSO Act were enhanced and he was taken into custody. The
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age of the girl child was not disputed, therefore, the provisions of
POCSO Act were clearly attracted. The birth certificate of the
prosecutrix is Ex.P/13 wherein the date of birth is recorded as
01.04.2015, therefore, at the time of incident she was 3 years, 4 months
and 12 days. The birth record of the hospital was exhibited as Ex.P/40
which was proved by Nitin Dwivedi (PW24). The statement of father
(PW1) to the aforesaid effect was also recorded. Therefore, as pointed
out already, there is no dispute with respect to the age of the victim.
27. Vide Ex.P/5, the seizure memo of the body was prepared which
was found at the instance of the accused. The body was seized on
16.08.2020 at 15:30 Hrs. Thereafter, identification panchnama of the
dead body was prepared (Ex.P-6) which was duly identified by the
father (PW1). The marg intimation (Ex.P-7) was recorded on
16.08.2018 at 15:55 Hrs. (Ex.P./7) and thereafter the body was sent for
post-mortem examination. The doctor who conducted the post-mortem
of the deceased has given the report regarding commission of rape and
thereafter death by strangulation. The post-mortem report is Ex.P/23.
Thus, the doctor has confirmed the factum of rape and murder by
throttling and the autopsy report states the death to be homicidal in
nature and the entire suspicion was drawn against the present appellant.
Further, memorandum of the accused under Section 27 of the Evidence
Act (Ex.P/16) has been recorded regarding recovery of clothes which
were worn by him at the time of commission of offence and which
were hidden in the house and at the instance of the accused, the same
were recovered from his house on 17.08.2018.
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28. The learned amicus curiae has raised a serious doubt with respect
to involvement of the accused-appellant in the commission of offence
on the ground of recovery of body of the deceased cannot be said to be
at the instance of the appellant as the police authorities were having
information regarding the same prior to his disclosure statement
(Ex.P/4). To the aforesaid effect, the investigation is required to be
seen. SHO K.S. Mukati (PW28) is the investigation officer in the case.
The interrogation with the accused was done on two occasions.
Initially, there was a 'Gum insan' report (Ex.P/1) dated 14.08.18 at
23:55 Hrs. on the basis of which an FIR under Section 363 of the IPC
was registered on 14.08.2018 at Police Station Obedullaganj District
Raisen against unknown person. From the perusal of the FIR, it is clear
that the name of the appellant was informed by the Dadi namely
Ghisiya Bai (PW3) who stated about taking of the girl child by the
appellant for dropping her to the parents' house. Thereafter, the
appellant was interrogated. Initially, he stated that he has taken the girl
child, purchased her a toffee and thereafter left her back in front of
Dadi's house. But, when the shopkeeper Sourabh (PW4) was
interrogated by the police authorities to ascertain the aforesaid fact, he
stated that the accused/appellant has not come with any girl child to his
shop drawing a suspicion against the appellant. He was again
interrogated by the police authorities on 16.08.2018 where he made a
disclosure statement (Ex.P/4) at 14:30 Hrs. The argument raised that
police authorities were well aware of the body of the deceased at 1 p.m.
because the information to the Scientific Officer was given on
16.08.2018 at 1 p.m. by the Investigating Officer through his mobile.
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29. The argument advanced is that after interrogation with the
appellant by the police authorities and prior to recording his statement
under Section 27 of the Evidence Act, the information was given to the
Scientific Officer on telephone was on the pretext that as the disclosure
is already made by the appellant, therefore, just to avoid any delay in
the investigation, he has informed the Scientific Officer. Thereafter, the
disclosure statement was penned down by the police authorities. The
aforesaid aspect further gets strength from the fact that the appellant
has escorted the police authorities to the place of the incident and has
got recovered the dead body. The statements of the Investigating
Officer and the Scientific Officer nowhere reflect that they were aware
of the exact location of the dead body. Rather, they were informed that
the dead body is hidden in the jungle but where it was, was not
disclosed. It was the appellant who took the police party to the exact
location from where they could recover the dead body. Rojnamchas
were prepared to the aforesaid aspect. Therefore, it cannot be said that
the dead body was not recovered at the instance of the accused. The
aforesaid aspect was explained by the prosecution. Therefore, the said
argument is of no help to the appellant. Apart from the aforesaid, vide
Ex.P/16, there is a recovery of clothes of the accused from his
possession and he has made a disclosure statement to this effect.
30. That apart, the appellant has also been seen by some of the
persons of the locality namely Mustak (PW5), Jagdish (PW6) and Aasif
(PW7) who have given statements to the effect that they have seen the
appellant carrying the girl child. They were never declared hostile by
the prosecution. Therefore, as far as the last seen theory is concerned,
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the accused-appellant was last seen with the victim as there is no other
statement on record to show that the deceased was last seen with
anyone else coupled with the statement made by the shopkeeper
Sourabh (PW4) who has supported by the prosecution story to the
extent that the appellant Jitendra has never come with the girl child to
his shop for purchase of toffee. The aforesaid aspects were correctly
appreciated by the learned trial Court. When the statement of
Investigation Officer K.S. Mukati (PW28) is seen, particularly
paragraphs 12 to 18 it is clear and the doubts which have been raised by
the defence were explained by him in his cross-examination. Thus, the
ground regarding recovery of dead body at the instance of the appellant
is clearly made out from the aforesaid. Thus, the ground raised by the
defence is unsustainable.
31. As far as the validity of the disclosure statement under Section 27
of the Evidence Act is concerned, the law is apparently clear to the
aforesaid. Section 27 of the Evidence Act is required to be seen. It reads
thus :
"27. How much of information received from accused may be
proved.--Provided that, when any fact is deposed to as
discovered in consequence of information received from a
person accused of any offence, in the custody of a police
officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby
discovered, may be proved."
32. The Hon'ble Supreme Court in the case of Aloke Nath Dutta vs
State of W.B. (2007) 12 SCC 230 has held as under :-
"53. It is, however, disturbing to note that a confession has
not been brought on record in a manner contemplated by law.
Law does not envisage taking on record the entire confession
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by marking it an exhibit incorporating both the admissible and
inadmissible part thereof together. We intend to point out that
only that part of confession is admissible, which would be
leading to the recovery of dead body and/or recovery of
articles of Biswanath; the purported confession proceeded to
state even the mode and manner in which Biswanath was
allegedly killed. It should not have been done. It may influence
the mind of the court. (See State of Maharashtra v. Damu
(2000) 6 SCC 269)."
33. In the case of Union of India v. R. Metri, (2022) 6 SCC 525, the
Hon'ble Supreme Court has held as under :
"45. It could, thus, be seen that the extra-judicial confession
is a weak piece of evidence. Unless such a confession is found
to be voluntary, trustworthy and reliable, the conviction solely
on the basis of the same, without corroboration, would not be
justified."
34. Another judgment on the point is the case of Swamy
Shraddananda vs State of Karnataka (2007) 12 SCC 288 and Rahul vs
State (NCT of Delhi) (2023) 1 SCC 83.
35. From the aforesaid judgments, it is apparently clear that the
confessional statement or disclosure statement should disclose the
commission of crime and should be supported by subsequent recovery
of the incriminating articles.
36. As to recording of memorandum prior to arrest of the accused,
the Hon'ble Supreme Court in the case of Mohd. Arif vs State (NCT of
Delhi), (2011) 13 SCC 621 has held as under :
"172. The Court in Suresh Chandra Bahri case [1995 Supp (1)
SCC 80] then stated in para 71 that the two essential
requirements of application of Section 27 of the Evidence Act
are that (1) the person giving information was accused of any
offence; and (2) he must also be in police custody. The Court
then went on to hold that:
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"71. ... The provisions of Section 27 of the Evidence Act are
based on the view that if the fact is actually discovered in
consequence of information given, some guarantee is afforded
thereby that the information is true and consequently the said
information can safely be allowed to be given in evidence
because if such an information is further fortified and
confirmed by the discovery of articles or the instrument of
crime and which leads to the belief that the information about
the confession made as to the articles of crime cannot be
false."
37. Further, in Vikram Singh vs State of Punjab, (2010) 3 SCC 56,
the Honble Supreme Court has held as under :
40. In State of U.P. v. Deoman Upadhyaya [AIR 1960 SC
1125 : 1960 Cri LJ 1504] this is what a Constitution Bench had
to say while examining the scope and applicability of Section
27. The Bench relying on the observations made by the Privy
Council in Pakala Narayana Swami v. King Emperor [(1938-
39) 66 IA 66 : AIR 1939 PC 47] observed as under : (Deoman
Upadhyaya case [AIR 1960 SC 1125 : 1960 Cri LJ 1504] , AIR
pp. 1128-29, para 7)
"7. Section 27 of the Evidence Act is one of a group of sections
relating to the relevancy of certain forms of admissions made
by persons accused of offences. Sections 24 to 30 of the Act
deal with admissibility of confessions i.e. of statements made
by a person stating or suggesting that he has committed a
crime. By Section 24, in a criminal proceeding against a
person, a confession made by him is inadmissible if it appears
to the court to have been caused by inducement, threat or
promise having reference to the charge and proceeding from a
person in authority. By Section 25, there is an absolute ban
against proof at the trial of a person accused of an offence, of a
confession made to a police officer. The ban which is partial
under Section 24 and complete under Section 25 applies
equally whether or not the person against whom evidence is
sought to be led in a criminal trial was at the time of making
the confession in custody. For the ban to be effective the person
need not have been accused of an offence when he made the
confession. The expression, 'accused person' in Section 24 and
the expression 'a person accused of any offence' have the same
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connotation, and describe the person against whom evidence is
sought to be led in a criminal proceeding. As observed in
Pakala Narayana Swami v. King Emperor [(1938-39) 66 IA
66 : AIR 1939 PC 47] , by the Judicial Committee of the Privy
Council : (AIR p. 52)
'... Section 25 covers a confession made to a police officer
before any investigation has begun or otherwise not in the
course of an investigation.'
The adjectival clause 'accused of any offence' is therefore
descriptive of the person against whom a confessional
statement made by him is declared not provable, and does not
predicate a condition of that person at the time of making the
statement for the applicability of the ban. Section 26 of the
Evidence Act by its first paragraph provides:
'26. Confession by accused while in custody of police not to be
proved against him.--No confession made by any person whilst
he is in the custody of a police officer, unless it be made in the
immediate presence of a Magistrate, shall be proved as against
such person.'
By this section, a confession made by a person who is in
custody is declared not provable unless it is made in the
immediate presence of a Magistrate. Whereas Section 25
prohibits proof of a confession made by a person to a police
officer whether or not at the time of making the confession, he
was in custody, Section 26 prohibits proof of a confession by a
person in custody made to any person unless the confession is
made in the immediate presence of a Magistrate. Section 27
which is in the form of a proviso states:
'27. How much of information received from accused may be
proved.--Provided that, when any fact is deposed to as
discovered in consequence of information received from a
person accused of any offence, in the custody of a police
officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby
discovered, may be proved.'
The expression, 'accused of any offence' in Section 27, as in
Section 25, is also descriptive of the person concerned i.e.
against a person who is accused of an offence, Section 27
renders provable certain statements made by him while he was
in the custody of a police officer. Section 27 is founded on the
principle that even though the evidence relating to confessional
or other statements made by a person, whilst he is in the
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custody of a police officer, is tainted and therefore
inadmissible, if the truth of the information given by him is
assured by the discovery of a fact, it may be presumed to be
untainted and is therefore declared provable insofar as it
distinctly relates to the fact thereby discovered. Even though
Section 27 is in the form of a proviso to Section 26, the two
sections do not necessarily deal with evidence of the same
character. The ban imposed by Section 26 is against the proof
of confessional statements. Section 27 is concerned with the
proof of information whether it amounts to a confession or not,
which leads to discovery of facts. By Section 27, even if a fact
is deposed to as discovered in consequence of information
received, only that much of the information is admissible as
distinctly relates to the fact discovered. By Section 26, a
confession made in the presence of a Magistrate is made
provable in its entirety."
38. Thus, the aforesaid makes it clear regarding the involvement of
the appellant in commission of the offence and the same is certified by
the doctor who has conducted the postmortem report.
39. Now, adverting to the medical evidence on record, it may be seen
that Dr. Vinay Prabha (PW14) who conducted the autopsy on
deceased's body has given a post-mortem report (Ex.P/23). The extracts
thereof are as under :
"A dead body of a female child aged about 6 years lying supine
on PM table wearing red colour frock. All four limbs are semi-
flexed and body is in stage of early decomposition. Maggots 3
to 4 mm crawling all over the body. (Lt) eye is bulging, (Rt) eye
decomposed. Black hair on scalp. Peeling off of skin at many
place, tongue protracted outside, teeth are inside. Face is
cyanosed. Neck is tilted to left side. Growing effect over
buttock and pessimism. Small loop of intestine putrefied present
outside the anus. Muddy particles over palm, sole and other
parts of the body. One ante-mortem lacerated wound over sub
clavicular region of (Lt) side of chest size 2 x 1 x 1 cm. Two
loop of yellow colour leggy tied around the neck with sliding
knot (Lt) side encircling the neck and ante-mortem irregular
bruise below the cloth (leggy) is present around neck which is
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dark brown and its width varies from 1 to 1½ inches and neck
is constricted by cloth and respiratory and muscles are
squeezed and respiratory passage obstructed and inflamed. On
examination of private part (arrow banana hai) there is
multiple laceration over the clitoris and at joining skin and
mucous with laceration of labia muscle size varies from 2 x 1
cm to ½ x ½ cm. Genitalia are swollen. Growing effect over
buttocks, perineum and around anal coral. All injuries on neck,
chest and genitalia are ante-mortem in nature. Internal organs
earlier stage decomposition solid particles in place."
Opinion of the Autopsy Surgeon
"Body is in dying state of early decomposition. There are signs
of ante-mortem injuries in genital parts as well as around the
neck of strangulation suggestive of sexual intercourse followed
by strangulation and death. Mark around neck can be
produced with yellow colour leggy is used for constricting
neck. Vaginal smear slides and swab preserved. Clothing and
article said to be used in strangulation pressured sealed and
given to concerned police. Death is homicidal. Duration of
death is within 3-5 days since PM examination."
40. Thereafter, a minute examination was got done and on the
examination of the deceased, Dr. Vinay Prabha (PW14) has noted as
follows :
2- izk;osV ikVZ dk ,Xtkfeus'ku& ,d ls vf/kd fNyk gqvk ?kko] ;ksuh
dh xqIrkax ij] peM+h ij] fedkslk ij vkSj ysfc;k ekstsjk ij Fkk] ftldk
vkdkj 2 xquk 1 lseh ls gkQ xquk gkQ lseh FkkA izk;osV ikVZ lwtk gqvk
FkkA mDr lkjh pksVs xys] psLV] Nkrh] xqIrkax ij Fkh] tks fd ,aVhekWVZe
,atqjh Fkh vFkkZr mDr pksVs e`R;q ds igys dh FkhA
3- ,Xtkfeus'ku vkWQ baVuZy vkxZu & baVuZy vkxZu] vjyh LVst vkWQ
fMdEiksft'ku FkkA baVuZy vkxZu dk inkZ] ilyh] QqlQql] daB] 'okl uyh]
nkfguh QsQM+k] ck;k QsQM+k] isjhvkWu ijdjfl;e] g~n;] o`gn okfgdk] vkarkas
dh f>Yyh] eqag ,oa xzkluyh] isV ,oa mlds Hkhrj dh oLrq,] NksVh ,oa cM+h
vkar ,oa mlds Hkhrj dh oLrq,a] ;d`r] Iyhgk] xqnkZ] ;s lHkh lkQ~V ,oa
Q~ySch FksA
4- vfHker & esjs er esa e`frdk dk 'kjhj] vjyh LVst vkWQ
fMdEiksft'ku esa FkkA e`frdk ds xqIrkaxksa esa] xys esa vkSj mlds izk;osV ikVZ esa
e`R;q ds igys dh pksVsa FkhA e`frdk dks vkbZ gqbZ e`R;q iwoZ pksVsa] lsDlqvy
baVjdkslZ ds nkSjku ,oa mlds ncko ls vkuk izrhr gksrh Fkh rFkk mldh
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e`R;q] mlds xys esa ysxh ds }kjk yisVdj] xyk nckus ls] ne ?kqVus ls gksuk
laHko FkhA
---
6- e`R;q ds izdkj & e`frdk dh e`R;q] ekuo o/k izd`fr ¼gkseslkbMy
uspj dh FkhA½ dh FkhA esjs }kjk e`frdk dk 'ko ijh{k.k] e`frdk dh e`R;q ds
3 ls 5 fnu ds Hkhrj fd;k x;k FkkA esjs }kjk nh xbZ 'ko ijh{k.k fjiksVZ iz-
ih&23 gS] ftlds , ls , Hkkx ij esjs gLrk{kj gSA
41. The post-mortem report (Ex.P/23) revealed that the girl child was
subjected to rape and thereafter strangulated. The specimens were
collected, sealed and thereafter handed over to the forensic examination
by the police authority. The same was sent for forensic examination
after collecting the sample for DNA. The same is not disputed.
42. The learned amicus curiae has raised a serious objection with
respect to the manner in which the samples were collected, sealed and
sent for chemical examination.
43. It is argued that once the prosecution could not establish that the
proper procedure is being followed, the DNA report could not have
been taken into consideration for basing the conviction of the appellant.
With respect to the aforesaid argument, it is seen that the specimens of
vaginal smear, blood sample, clothes (red frock and yellow colour
leggy), viscera, stomach and seal sample were prepared by the autopsy
surgeon Dr. Vinay Prabha (PW14). All the articles were sealed and
thereafter handed over to the police. For DNA examination, the blood
sample of the accused was collected. The Chemical Examiner has given
the report on 29.09.2018 which was duly presented before the trial
Court and marked as Ex.P/50 by SHO K.S. Mukati (PW28) from where
it is seen that the samples which were seized and sealed were received
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by the Forensic Officer in a sealed form along with the seals. The
extracts of the DNA report (Ex.P/50) are reflected as under : -
Rkkfydk 1 % izdj.k ds fofHkUu izn'kksZ ls izkIr iq:"k Y chromosome STR DNA Profile dk
fooj.k fuEukuqlkj gSa %&
STR Genetic izn'kZ A (B/R-7677) izn'kZ B (B/R- izn'kZ J (B/R-
Markers e`frdk xxx ds L=ksr diMs 7678) e`frdk xxx ds 7684) vkjksih ftrsUnz
¼ySxh] QzkWd½ ls L=ksr ostkbZuy LykbM ls ds L=ksr CyM lSaiy ls
izkIr Mh,u, izksQkby izkIr Mh,u, izksQkby
DYS385 11]15 11]15
DYF387S1 37]39 37]39
mijksDr rkfydkuqlkj &
e`frdk xxx ds L=ksr diMs+ ¼ySxh] QzkWd½ izn'kZ A (B/R-7677) ls iq:"k Y
chromosome STR DNA Profile izkIr ugh gqbZA
e`frdk xxx ds L=ksr ostkbZuy LykbM izn'kZ B (B/R-7678) ls iq:"k Y
chromosome STR DNA Profile izkIr gqbZA
e`frdk xxx ds L=ksr ostkbZuy LykbM izn'kZ B (B/R-7678) ls iq:"k Y
chromosome STR DNA Profile ds izR;sd tsusfVd ekdZj ij ik, x;s ,yhy
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,oa vkjksih ftrsUnz ds L=ksr CyM lSaiy izn'kZ J (B/R-7684) ls izkir Y
chromosome STR DNA Profile ds izR;sd tsusfVd ekdZj ij ik, x;s ,yhy
,d leku gSaA
Rkkfydk 2 % izdj.k ds fofHkUu izn'kksZ ls izkIr Autosmal STR DNA Profile dk fooj.k
fuEukuqlkj gSa %&
Genetic izn'kZ C izn'kZ D izn'kZ G izn'kZ H, I izn'kZ F, J
Markers (B/R-7679) (B/R-7680) (B/R-7683) (B/R-7683, (B/R-7682,
e`frdk xxx ds e`frdk xxx ds vkjksih ftrsUnz } B/R-7683) B/R-7684)
L=ksr CyM lSaiy L=ksr ostkbZuy kjk is'k djus ij vkjksih ftrsUnz } vkjksih ftrsUnz ds
ls izkIr Mh,u, LykbM ls izkIr tIr vaMjfo;j ls kjk is'k djus ij L=ksr I;wfcd
izksQkby Mh,u, izksQkby izkIr Mh,u, tIr isaV ,oa 'kVZ gS;j ,oa CyM
izksQkby lSaiy ls izkIr
Mh,u, izksQkby
D3S1358 16]17 mijksDr izn'kZ 16]18 mijksDr 16]18
vWA 17]19 ls 14]14 izn'kZ ls 14]14
D16S539 9]11 Autosomal 11]12 Autosomal 11]12
CSF1PO 10]11 STR DNA 12]2 STR DNA 12]2
TPOX 11]11 Profile izkIr 9]11 Profile izkIr 9]11
D8S1179 14]15 ugha gqbZA 11]14 ugha gqbZA 11]14
D21S11 30]30 29]32-2 29]32-2
D18S51 19]22 15]19 15]19
D2S441 10]10 10]12 10]12
D19S433 12]13-2 12]13 12]13
TH01 9]9 7]9 7]9
FGA 22]25 24]26 24]26
D22S1045 15]16 15]19 15]19
D5S818 10]12 11]12 11]12
D13S317 11]11 10]11 10]11
D7S820 8]12 10]12 10]12
SE33 17]18 17]32-2 17]32-2
D10S1248 13]14 15]16 15]16
D1S1656 11]17]3 11]16 11]16
D12S391 19]24 18]20 18]20
D2S1338 18]23 18]24 18]24
AMELOGENIN XX XY XY
mijksDr rkfydkuqlkj &
?kVukLFky ls tIr feV~Vh ls lus cky izn'kZ D (B/R-7680) ls Autosomal
STR DNA Profile izkIr ugh gqbZA
vkjksih ftrsUnz }kjk is'k djus ij tIr isaV izn'kZ H (B/R-7683) ,oa 'kVZ izn'kZ
I (B/R-7683) ls Autosomal STR DNA Profile izkIr ugh gqbZA
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vkjksih ftrsUnz }kjk is'k djus ij tIr vaMjfo;j izn'kZ G (B/R-7683) ,oa
vkjksih ftrsUnz ds L=ksr I;wfcd gs;j izn'kZ F (B/R-7682)] CyM lSaiy izn'kZ J
(B/R-7684) ls ,d leku iq:"k Autosomal STR DNA Profile izkIr gqbZA
vkjksih ftrsUnz }kjk is'k djus ij tIr vaMjfo;j izn'kZ G (B/R-7683) ,oa
vkjksih ftrsUnz ds L=ksr I;wfcd gs;j izn'kZ F (B/R-7682)] ls fefJr
Autosomal STR DNA Profile izkIr u gksus ds dkj.k bldk feyku] e`frdk
xxx ds L=ksr CyM lSaiy izn'kZ C(B/R-7679) ls izkIr efgyk Autosomal STR
DNA Profile ls fd;k tkuk laHko ugha gSA
vfHker%&
Mh,u, izksQkbfyax gsrq izkIr izn'kksZa ij fd;s x;s ijh{k.k ,oa izkIr ifj.kkeksa ds
vk/kkj ij fuEufyf[kr fuf'p;kRed ifj.kke izkIr gq;s &
e`frdk xxx ds L=ksr ¼izn'kZ B½ ls izkIr iz:"k Y chromosome
STR DNA Profile ,oa vkjksih ftrsUnz ds L=ksr ¼izn'kZ J½ ls
izkIr Y chromosome STR DNA Profile ,d leku gSaA
44. Thus, the DNA report clearly establishes that the blood samples
collected from the accused and the samples which were collected from
the victim were matching. In view whereof, it is apparently clear that
the accused was the person who had taken away the girl child and
committed rape upon her and thereafter murdered her. The learned
amicus curiae has raised the said objection for the first time but during
the course of investigation/trial, no effort was made by the defence
regarding the aforesaid. Further, no application was filed for calling the
Forensic Officer who has conducted the DNA examination. In absence
of any efforts being made by the defence, no benefit can be extended at
this stage. Further, after arrest of the accused, he was sent for
examination and he was examined by Dr. K.P. Yadav (PW25) vide
Ex.P-41 in which he has opined that the appellant/accused was capable
of performing sexual intercourse. Thereafter, on 19.08.2018, the blood
sample of the accused was collected and handed over to the
Investigating Officer K.S. Mukati (PW28) for sending it to the forensic
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officer which is exhibited as Ex.P/36. This fact is narrated by Constable
Balwan Singh (PW19). Moreover, DNA report (Ex.P/50) has clearly
clarified the aspect that the samples were received in a sealed condition
by the laboratory for verification, therefore, the collection, sealing and
handing is done in a full proof manner and the same cannot be doubted.
45. A co-ordinate Bench of this Court in the case of Santosh Markam
vs State of M.P. 2022 SCC OnLine MP 2186 has considered the aspect
that the conviction can be based on the DNA evidence also. In this
regard, reference may also be made to the decision rendered by this
Court in Deepak @ Nanhu Kirar vs State of M.P. 2020 CrLJ 2076.
46. Another argument is raised that when the statement of the
accused under Section 313 of CrPC was recorded, no question was put
with respect to the DNA report rather Question No.182 reflects that a
question qua DNA report was put to the accused. He was well aware of
this fact that the DNA report is against him. Then, the examination of
the prosecution witnesses was conducted. Thus, there is no miscarriage
of justice to the appellant looking to Question No.182. The judgment
passed by the Hon'ble Supreme Court in the case of Nar Singh v. State
of Haryana, (2015) 1 SCC 496 is relevant for the aforesaid aspect.
Thus, the facts and circumstances of the case clearly reflect the guilt of
the accused. This is a case of circumstantial evidence and the entire
chain of circumstance is complete and duly proved by the prosecution.
47. With respect to the completion of chain of circumstances, the
relevant facts are as under :
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(i) The accused took away the girl child (since
deceased) from the house of her grandmother on the
pretext of getting her toffee;
(ii) The deceased who was aged 3 years 4 months 12
days knew the accused as her "Chacha" does not resist;
(iii) The accused cooked up a story of having dropped the
deceased back to her Dadi's house after getting her toffee;
(iv) The story of accused is falsified by shopkeeper
Saurabh (PW4);
(v) Recovery of the dead body at the instance of the
accused;
(vi) Availability of last seen testimonies;
(vii) No plausible explanation offered by the accused;
(viii) The post-mortem report indicates the death by
throttling after rape;
(ix) Several injuries found on the person of the deceased
indicating cruel use of force;
(x) Injury on the glans of the accused; and
(xi) DNA report indicating guilt of the accused.
48. Thus, from the aforesaid it can safely be inferred that the accused
is the person who has taken away the girl child, committed rape on her
and then murdered her. Recovery of the dead body at the instance of the
appellant, recovery of clothes of the accused worn at the time of
commission of offence, the DNA report being found positive coupled
with the post-mortem report given by Dr. Vinay Prabha (PW14) makes
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it apparently clear that the accused was the person who was responsible
for rape and murder of the girl child aged about 4 years.
49. For the offences which have been registered against the appellant
under the POCSO Act, the presumption contemplated by Section 29
thereof came into operation and the burden shifts upon the appellant
and it is for him to rebut the presumption and to prove that he has not
committed the offence. In the present case, the appellant-accused has
failed to prove his innocence as all the evidences which have been
collected during investigation/trial go against him. The presumption in
terms of Section 29 of the POCSO Act would only lead to finding of
guilt against the accused. The aforesaid aspect was considered by the
Hon'ble Supreme Court in the case of Pappu vs State of U.P., (2022) 10
SCC 321 with reference to paragraph 108 thereof.
50. In the facts and circumstances of the instant case, on the basis of
disclosure statement of the accused-appellant recorded under Section
27 of the Evidence Act, the body of the deceased-victim was recovered.
Thus, the aforesaid was sufficient to enable the prosecution as well as
the learned trial Court to place reliance upon the disclosure statement
(Ex.P/4).
51. So far as the circumstantial evidence is concerned, the Hon'ble
Supreme Court in the case of Sharad Birdhichand Sarda vs State of
Maharashtra, (1984) 4 SCC 116 has held as under
"159. It will be seen that this Court while taking into account
the absence of explanation or a false explanation did hold that
it will amount to be an additional link to complete the chain but
these observations must be read in the light of what this Court
said earlier viz. before a false explanation can be used as
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additional link, the following essential conditions must be
satisfied:
(1) various links in the chain of evidence led by the
prosecution have been satisfactorily proved,
(2) the said circumstance points to the guilt of the accused
with reasonable definiteness, and
(3) the circumstance is in proximity to the time and
situation.
160. If these conditions are fulfilled only then a court can use
a false explanation or a false defence as an additional link to
lend an assurance to the court and not otherwise. .."
52. Similar view was followed in the case of Sudama Pandey vs
State of Bihar (2002) 1 SCC 679.
53. In the present case, the entire chain of circumstances is proved.
From the aforesaid analysis, it is apparently clear that the trial Court
has not committed any error in holding the appellant guilty and
convicting and sentencing him as stated above.
54. So far as the sentence awarded by the learned trial Court, the
same is required to be seen.
55. The learned amicus curiae on the question of sentence has argued
that if the Court has arrived at the conclusion that the guilt of the
accused-appellant is proved then instead of awarding capital
punishment, some lesser punishment may be awarded looking to the
entire facts and circumstances of the case as well as the age of the
accused-appellant. The theory of reformation is required to be seen by
the Court. He has placed reliance on the decisions rendered by the
Hon'ble Supreme Court in the cases of Irappa Siddappa Murgannavar
vs State of Karnataka, (2022) 2 SCC 801 and Pappu vs State of U.P.,
(2022) 10 SCC 321 wherein in almost similar fact-situation, after
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holding the accused guilty, the Hon'ble Supreme Court has modified
the sentence and the death sentence is commuted into that of
imprisonment for life, with the stipulation that the appellant shall not be
entitled to premature release or remission before undergoing actual
imprisonment for a period of 30 years.
56. The learned Public Prosecutor has opposed the contentions and
submitted that it is the fit case for awarding death sentence to the
accused since all the evidence collected during investigation/trial
clearly establishes the guilt of the appellant.
57. The law is well settled that even in cases of circumstantial
evidence, the death sentence can be awarded. The same was considered
by a three-Judge Bench of the Hon'ble Supreme Court in the case of
Ravishankar vs State of M.P. (2019) 9 SCC 689. The theory of
"residual doubt", which effectively creates a higher standard of proof
over and above the "beyond reasonable doubt" standard used at the
stage of conviction, as a safeguard against routine capital sentencing,
keeping in mind the irreversibility of death is also to be considered.
Further, the power to modify the sentence from capital punishment to
that of imprisonment for life or for more than 20 or 30 years lies with
the constitutional courts. The Hon'ble Supreme Court in the cases of
Union of India v. V. Sriharan, (2016) 7 SCC 1 has taken note of the
aforesaid aspect and observed thus :
"105. We, therefore, reiterate that the power derived from the
Penal Code for any modified punishment within the punishment
provided for in the Penal Code for such specified offences can
only be exercised by the High Court and in the event of further
appeal only by the Supreme Court and not by any other court
in this country. To put it differently, the power to impose a
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modified punishment providing for any specific term of
incarceration or till the end of the convict's life as an alternate
to death penalty, can be exercised only by the High Court and
the Supreme Court and not by any other inferior court."
58. The proposition of law which emerges from the judgments
dealing with cases of death sentence has been clarified that the death
sentence cannot be imposed except in the rarest of rare cases, for which
special reasons have to be recorded, as mandated in Section 354(3) of
the Criminal Procedure Code. It is required to be seen that whether a
case falls within the category of the rarest of rare, the brutality, and/or
the gruesome and/or heinous nature of the crime, the state of mind, the
socio-economic background of the offender etc. are also required to be
taken into consideration.
59. In this regard, reference may be made to the landmark decisions
of the Hon'ble Supreme Court in the case of Bachan Singh vs State of
Punjab AIR 1980 SC 898 and the propositions formulated thereon in a
subsequent judgment rendered in Machhi Singh v. State of Punjab AIR
1983 SC 957. In Amar Singh Yadav vs State of U.P., (2014) 13 SCC
443, it is held :
22. This Court noticed the aggravating and mitigating
circumstances in Ramnaresh v. State of Chhattisgarh, (2012) 4
SCC 257 and held as follows:
"76. The law enunciated by this Court in its recent judgments,
as already noticed, adds and elaborates the principles that
were stated in Bachan Singh v. State of Punjab (1980) 2 SCC
684 and thereafter, in Machhi Singh v. State of Punjab, (1983)
3 SCC 470. The aforesaid judgments, primarily dissect these
principles into two different compartments--one being the
'aggravating circumstances' while the other being the
'mitigating circumstances'. The court would consider the
cumulative effect of both these aspects and normally, it may not
be very appropriate for the court to decide the most significant
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aspect of sentencing policy with reference to one of the classes
under any of the following heads while completely ignoring
other classes under other heads. To balance the two is the
primary duty of the court. It will be appropriate for the court to
come to a final conclusion upon balancing the exercise that
would help to administer the criminal justice system better and
provide an effective and meaningful reasoning by the court as
contemplated under Section 354(3) CrPC.
Aggravating circumstances
(1) The offences relating to the commission of heinous crimes
like murder, rape, armed dacoity, kidnapping, etc. by the
accused with a prior record of conviction for capital felony or
offences committed by the person having a substantial history
of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged
in the commission of another serious offence.
(3) The offence was committed with the intention to create a
fear psychosis in the public at large and was committed in a
public place by a weapon or device which clearly could be
hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like
offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only
while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful
custody.
(8) The murder or the offence was committed to prevent a
person lawfully carrying out his duty like arrest or custody in a
place of lawful confinement of himself or another. For instance,
murder is of a person who had acted in lawful discharge of his
duty under Section 43 CrPC.
(9) When the crime is enormous in proportion like making an
attempt of murder of the entire family or members of a
particular community.
(10) When the victim is innocent, helpless or a person relies
upon the trust of relationship and social norms, like a child,
helpless woman, a daughter or a niece staying with a
father/uncle and is inflicted with the crime by such a trusted
person.
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(11) When murder is committed for a motive which evidences
total depravity and meanness.
(12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks
not only the judicial conscience but even the conscience of the
society.
Mitigating circumstances
(1) The manner and circumstances in and under which the
offence was committed, for example, extreme mental or
emotional disturbance or extreme provocation in
contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a
determinative factor by itself.
(3) The chances of the accused of not indulging in commission
of the crime again and the probability of the accused being
reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally
defective and the defect impaired his capacity to appreciate the
circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would
render such a behaviour possible and could have the effect of
giving rise to mental imbalance in that given situation like
persistent harassment or, in fact, leading to such a peak of
human behaviour that, in the facts and circumstances of the
case, the accused believed that he was morally justified in
committing the offence.
(6) Where the court upon proper appreciation of evidence is of
the view that the crime was not committed in a preordained
manner and that the death resulted in the course of commission
of another crime and that there was a possibility of it being
construed as consequences to the commission of the primary
crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a
sole eyewitness though the prosecution has brought home the
guilt of the accused."
60. In the case of Machhi Singh (supra), a three-judge Bench of the
Supreme Court analyzed the decision rendered in the case of Bachan
Singh (supra) and formulated the following propositions for
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determination of the rarest of rare cases, which are to be applied when
the question of awarding death sentence arises;
(i) The extreme penalty of death need not be inflicted except
in gravest cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances of
the offender' also require to be taken into consideration along
with the circumstances of the crime;
(iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed only
when life imprisonment appears to be an altogether inadequate
punishment having regard to the relevant circumstances of the
crime, and provided, and only provided, the option to impose
sentence of imprisonment of life cannot be conscientiously
exercised having regard to the nature and circumstances of the
crime and all the relevant circumstances;
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances has to be accorded full weightage
and a just balance has to struck between the aggravating and
mitigating circumstances before the option is exercised."
It was further laid down that in order to apply these guidelines,
inter alia, the following questions may 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
hereinabove, the circumstances of the case are such that death
sentence is warranted, the Court would proceed to do so."
61. Accordingly, we proceed to prepare a chart of aggravating and
mitigating circumstances in the instant case, as under -
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Aggravating circumstances Mitigating circumstances
(i) The deceased is a child aged (i) The accused belonged to
about 3 years and 4 months. weaker socio-economic
background.
(ii) Injuries caused to the deceased (ii) He is a person aged about
before murder indicating brutal 24 years.
state of mind. The injury on the
glans of the accused indicating
brutality and forcefully the rape was
committed.
(iii) The accused was a relative of (iii) He has dependent mother.
the deceased and she used to
address him as "Chacha". A
relationship of trust and confidence
has broken down.
(iv) Immediately after the incident (iv) He has no criminal
accused went to shop of Saurabh to antecedents.
get Rajshree gutkha which reflects
his state of mind.
(v) The deceased in her innocence
desired to have toffee, trusted the
accused and went with him.
(vi) The accused tried to destroy
evidence and hide the dead body.
(vii) After the incident accused
behaved normally which indicates
he has no repentance of the crime.
(viii) The way the offence is
committed is shocking & the
chances of repeating can't be ruled
out.
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62. The aggravating circumstances are required to be seen which is a
crime test. Thereafter, the mitigating circumstances which again gives a
crime test are required to be considered. The test which is to be applied
for death sentence are crime test, criminal test and R-R test.
63. The mitigating circumstances are established in the present case.
The victim was aged about 4 years and the appellant-accused was aged
about 24 years at the time of commission of offence. The victim was
known to the accused as he was in near relation with the victim and
taking advantage of the aforesaid, she without any resistance
accompanied the accused-appellant who has given temptation of
purchasing her a toffee. Taking advantage of the aforesaid condition,
she was taken by him to a jungle and thereafter she was raped and
murdered. Therefore, all the mitigating circumstances are available in
the present case. As pointed out already, the accused was 24 years of
age and the victim was a child aged about 4 years. The state of mind of
the accused is indicative of the fact that just to fulfill his lust for sex, he
committed the rape on the victim aged 4 years and murdered her and
hid her dead body in the jungle.
64. Now the theory of R-R test is to be applied along with the theory
of reformation. R-R test depends upon various factors. Perception of
the society that is society centric and not a judge centric. Whether the
society will approve the awarding of death sentence to certain type of
crimes or not. The court is required to look into the variety of factors
like society's abhorrence, extreme indignation and antipathy to certain
types of crimes which shake the collective conscience of the society.
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65. In the present case, although the offence has been committed
taking advantage of the position that the victim was known to the
accused but the fact remains that the it does not constitute a case which
could be stated to be falling under the category of rarest of rare case.
The theory of residual doubt is also required to be considered which
effectively creates a higher standard of proof over and above beyond
reasonable doubt. Although in the instant case, the prosecution has
successfully established the case beyond any reasonable doubt against
the accused but the theory of residual doubt has to be applied as a
safeguard against the routine capital sentencing keeping in mind the
irreversibility of death. The age of the accused is required to be seen
and whether there is a possibility for reformation or not is required to
be kept in mind prior to sentencing for death.
66. Applying the aforesaid test, it cannot be said that the present case
is falling under the category of 'rarest of rare case'. Therefore, this
Court deems it appropriate to modify the sentence awarded to the
appellant under various sections. Instead of death penalty being given
to the accused-appellant for offence under Sections 376AB, 376A and
302 of IPC, he is punished with an imprisonment for life without any
remission. The remaining sentences as awarded by the learned trial
Court are kept intact. The convictions awarded to the appellant by the
learned trial Court after holding him guilty are maintained, however,
the sentence imposed is being modified only to the extent indicated
above.
67. In the result, the criminal appeal preferred by the accused-
appellant is partly allowed in the following terms :
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(i) The impugned convictions for the offences under
Sections 366, 376(2)(j), 376(2)(m) & 201 of IPC and
Section 5n/6 of the POCSO Act and the consequent
sentences therein are affirmed.
(ii) The impugned convictions for the offences under
Sections 376A and 376AB of IPC are affirmed; however,
instead of death sentence, the appellant is sentenced to
imprisonment for life, to mean imprisonment for the
remainder of his natural life.
(iii) The impugned conviction for the offence under
Section 302 of IPC is affirmed; however, instead of death
sentence, the appellant is sentenced to imprisonment for
life.
(iv) The other terms of sentences awarded to the
appellant including the amount of fine and default
stipulations are also confirmed.
(v) All the substantive sentences awarded to the
appellant shall run concurrently.
68. The criminal appeal is allowed in part and disposed off in above
terms.
69. With the aforesaid observations, the criminal reference is
answered accordingly.
70. The Registrar (Judicial) is directed to send a duly attested copy of
this judgment to the concerned trial Court as mandated under Section
371 of the CrPC for needful.
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71. Before parting, we must put on record our appreciation for the
valuable assistance rendered by the learned amicus curiae to this Court
and in dispensation of justice and disposal of this case. The High Court
Legal Services Authority shall remit fee of Rs.10,000/- (Rupees Ten
Thousand) to the amicus curiae who assisted this Court.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
vinod
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