VEERENDRA versus STATE OF MADHYA PRADESH on 13 May 2022

[2022] 4 S.C.R. 225

VEERENDRA

v.

STATE OF MADHYA PRADESH

(Criminal Appeal Nos. 5 & 6 of 2018)

MAY 13, 2022

[A. M. KHANWILKAR, DINESH MAHESHWARIAND C. T. RAVIKUMAR, JJ.]

Penal Code, 1860 – ss. 376A, 376 (2)(i), 302 – POCSO Act– s. 6 – Rape and murder of a minor girl – Prosecution case thatappellant-accused had raped and throttled to cause death of victim,who was daughter of appellant’s cousin sister – While in custodyduring interrogation, the appellant made disclosure statement andthereafter, at his instance, the victim’s corpse concealed underneathgunny bags, was recovered – The post-mortem and the forensicscience laboratory (FSL) reports revealed commission of rape in adiabolically and gruesome manner and causing of death bythrottling – Trial Court convicted him for offence punishable u/s302, 376A, 376(2)(i) of IPC and sec. 6 of POCSO Act and awardedhim death sentence – High Court set aside the conviction u/s 376Aof IPC and the rest of the sentences passed by trial Court wereconfirmed including death sentence recorded for the offence u/s302 of IPC – On appeal, held: The recovery of the dead body,which was in a concealed condition from an unused and dilapidatedbuilding based on the disclosure statement of an accused is a crucialincriminating circumstance – Another incriminating circumstanceconsidered against the appellant is the presence of nail marks onhis face and neck and also his failure to offer explanation - Thedeceased was lastly seen with the appellant on that fateful day – Itis evident that an additional link is available in this case owing tothe failure on the part of the appellant to explain all the incriminatingcircumstances in the personal examination conducted u/s 313 ofCrPC – The cumulative effect of all incriminating circumstances,would definitely justify the finding of the High Court as to the guiltof the appellant – The trial Court and also the High Court rightlyconcluded that the death of the victim is homicidal – The Courtshave also rightly found that victim was raped – Thus, on a carefulexamination of the matter in its entirety, there is no perversity or

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Amanifest illegality with respect to the concurrent finding of the trialCourt and the High Court that the appellant had committed theoffences.

Code of Criminal Procedure, 1973 – s. 354(3) – Deathsentence – This penalty is awardable to a culprit only the categoryBof the case falls under ‘rarest of rare cases’, the culprit has becomea threat to the society at large and beyond reformation and hiselimination is the only way for eradication of the threat – The presentcase cannot be considered as one falling in the category of ‘rarestof rare cases’ in which there is no alternative but to impose deathsentence – While commuting capital punishment, the appellant wasCawarded life imprisonment without application of the provisions ofpremature release/remission for a substantial length of period.

Penal Code, 1860 – ss. 302, 304 – Culpable homicide andmurder – The right approach in cases of culpable homicide is tofirst find out whether the offence falls under any of the four clausesDviz., clauses firstly to fourthly u/s. 300 IPC - If it is so found, thenthe Court has to see whether the case is covered by any one of thefive exceptions to section 300 IPC, which would make a culpablehomicide ‘not amounting to murder’ – The offence, if proved, to fallunder one of the said exceptions would be punishable u/s. 304,Eeither under Part 1 or Part 2 as the case may be, or otherwise itwould be murder punishable u/s. 302 IPC.

Conclusion

Criminal Procedure Code, 1973 – s.53A – Examination ofaccused by medical practitioner – Non-conduct of – DNA Profiling- There can be no doubt with respect to the position that a fairFinvestigation is necessary for a fair trial – However, solely onaccount of defects or shortcomings in investigation an accused isnot entitled to get acquitted – The lapse or omission (purposeful orotherwise) to carry out DNA profiling, by itself, cannot be permittedto decide the fate of a trial for the offence of rape especially, whenit is combined with the commission of the offence of murder as inGcase of acquittal only on account of such a flaw or defect in theinvestigation the cause of criminal justice would become the victim.

Evidence Act, 1872 – Circumstantial Evidence – Last SeenTheory – In the instant case, the convic tion by the trial Court wasnot solely based on “last seen theory” – The confirmation of theH

con viction and sentence in the stated manner by the High Court isalso not solely based on the “last seen theory” – Both the trialCourt and High Court relied on the testimonies of the oral witnessesand other material evidences – Also, disclosure statement of theaccused, which was resulted in recovery of the dead body.

Partly allowing the appeal, the Court

HELD: 1. In view of the nature of the provision underSection 53A Cr.P.C and the decisions referred, this Court is alsoof the considered view that the lapse or omission (purposeful orotherwise) to carry out DNA profiling, by itself, cannot bepermitted to decide the fate of a trial for the offence of rapeespecially, when it is combined with the commission of the offenceof murder as in case of acquittal only on account of such a flaw ordefect in the investigation the cause of criminal justice wouldbecome the victim. The upshot of this discussion is that even ifsuch a flaw had occurred in the investigation in a given case, theCourt has still a duty to consider whether the materials andevidence available on record before it, is enough and cogent toprove the case of the prosecution. In a case which rests oncircumstantial evidence, the Court has to consider whether,despite such a lapse, the various links in the chain ofcircumstances forms a complete chain pointing to the guilt of theaccused alone in exclusion of all hypothesis of innocence in hisfavour. [Para 28][251-G-H; 252-A-C]

2. In the light of the above referred decisions, thecontentions of the appellant founded on the factum of non-holdingof DNA profiling and the provision under Section 53A, is only tobe repelled. As held in Sunil’s case, a positive result of DNA testwould constitute clinching evidence against the accused. But, anegative result of DNA test or DNA profiling having not beendone would not and could not, for that sole reason, result in failureof prosecution case. So much so, even in such circumstances,the Court has a duty to weigh the other materials and evidenceon record to come to the conclusion on guilt or otherwise of theappellant herein and that exactly what was done by the trial Courtand then by the High Court, in the instant case. [Para 30][253-B-D]

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A3. The High Court had interfered with the conviction of theappellant under Section 376A IPC the question whether the restof the incriminating circumstances formed a complete chainleading solely to the guilt of only appellant in exclusion of allhypothesis in favor of his innocence, as held by the High Court.Considering in detail all the incriminating circumstances andBmaterials available to support them that weighed with the HighCourt. Suffice it to say that they would go to show that despitewhat are eschewed a continuous and complete chain ofcircumstances and materials supporting them, is available andthey are wholly inconsistent with the innocence of the appellantCand consistent only with his guilt. Above all, it is evident that anadditional link is available in this case owing to the failure on thepart of the appellant to explain all the aforesaid incriminatingcircumstances. While being examined under Section 318, Cr.P.C.in respect of all questions his answers were either ‘it is false’ or‘I do not know’. There is absolutely no case for the appellantDthat all the incriminating circumstances were not put to him. Inview of Pattu Rajan’s case and other decisions such as, TrimukhMaroti Kirkan Vs. State of Maharashtra offering no explanationon incriminating circumstances mentioned above would becomean additional link in the chain of circumstances. The cumulativeEeffect of all the aforesaid circumstances, referred to in detailhereinbefore, would definitely justify the finding of the High Courtas to the guilt of the appellant. [Para 47][265-D-H]

4. The trial Court and also the High Court had concurrentlyconcluded that the death of the victim is homicidal in nature. ThisFCourt has found, based on the evidence on record, that the Courtshave rightly found that the victim was raped. The diabolic andgruesome manner in which the appellant had ravished the haplessgirl is evident from the grave injuries on her pudenda. Thereoccurred perennial tear of grade fourth extending up to anus and that her uterus was torn and was coming out from the vagina. AsGnoticed above, the vaginal swab on examination revealed thepresence of blood and semen. Hence, the finding that thedeceased was subjected to rape warrants no interference. [Para48][266-A-C]

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5. The question, now to be considered is whether thehomicidal death of the victim amounts to murder or whether itfalls either under Section 304(1) or 304(2) as contended by theappellant. The impugned judgment would reveal that the HighCourt concurred with the finding of the trial Court that thehomicidal death of the victim amounts to murder. The rightapproach in cases of culpable homicide is to first find out whetherthe offence falls under any of the four clauses viz., clauses firstlyto fourthly under Section 300 IPC. If it is so found, then the Courthas to see whether the case is covered by any one of the fiveexceptions to section 300 IPC, which would make a culpablehomicide ‘not amounting to murder’. The offence, if proved, tofall under one of the said exceptions would be punishable underSection 304, either under Part 1 or Part 2 as the case may be, orotherwise it would be murder punishable under Section 302 IPC.In the case on hand both the trial Court and the High Court, hadanalysed evidence on record and found that the appellant hadpressed the neck of the victim so hard unmindful of the fact thatshe was aged only 8 years and caused internal hemorrhage. Thecause of death was asphyxia due to throttling. The nature of theinjuries found on the neck of the deceased would reveal thepressure exerted by the appellant on the neck. The fact that thevictim was a hapless girl aged only 8 years has to be taken intoaccount while considering the question. Intention is a subjectiveelement and every sane person must be presumed to intend theresult that his action normally produces. Hence, constriction ofthe neck of a girl child aged about 8 years by fingers or palm by ayoung man aged 25 years, with such force to cause the injuriesmentioned hereinbefore cannot be said to be sans intention totake her life. If the said act was subsequent to commission ofrape in the diabolic and gruesome manner revealed from the graveinjuries sustained on her private parts, causing death alone canbe inferred from the circumstances. If the act of constricting theneck with such force resulting in the stated injuries precededthe offence of rape, then, the manner by which she was ravishedshould be taken only as an act done knowingly that it is soimminently dangerous that it must in all probability cause deathor such bodily injury as is likely to cause death. Thus, viewing inany angle the homicidal death would fall either Clause 1 or Clause AB

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A4 of Section 300 IPC. A feeble attempt was made by the appellantto contend that the Courts had erred in finding the appellant guiltyunder Section 300 IPC, punishable under 302 IPC and that if atall he has to be convicted for causing death of the victim it oughtto have been under Section 304 IPC. It is to be noted, once it isfound that the act falls under any one of the 4 clauses under SectionB300 IPC, to bring it out of its purview it must be proved that itfalls under any one of the five exceptions to Section 300 IPC.There is nothing on record and no contention was also raised bythe appellant, with support of material, to show that any one ofthe said five exceptions attracts in this case. In fact, the onlyCcontention urged and also taken in the written submission by theappellant is that the deceased had died due to an injury on herneck which had occurred quite naturally during the commissionof the rape. This Court has no hesitation to hold that the saidcontention is palpably untenable and at any rate, not at all sufficientto bring the offence under any one of the five exceptions toDSection 300 IPC. The long and short of the discussion is there isno reason to interfere with the finding of the Trial Court, whichwas confirmed by the High Court, that the appellant is guilty ofcommitting murder punishable under Section 302 IPC. Thus, ona careful examination of the matter in its entirety, we do not findEany perversity or manifest illegality with respect to the concurrentfinding of the trial Court and the High Court that the appellantherein had committed offences punishable under Section 302 IPC,376(2)(i) IPC and Section 6 of the POCSO Act. [Para 50][267-A-H; 268-A-D]F6. The next question is whether death sentence awardedby the trial Court and confirmed by the High Court for theconviction of the offence of murder be maintained or substituted?This penalty is awardable to a culprit only the category of thecase falls under ‘rarest of rare cases’, the culprit has become a threat to the society at large and beyond reformation and hisGelimination is the only way for eradication of the threat. Fordeciding the said question various aspects have to be considered.On a careful scanning of the consideration made by the trial Courtas also the High Court for awarding the sentence for theconviction under Section 300 IPC, punishable under section 302HIPC, this Court is of the view that the question regarding the correctness of the death sentence awarded to the appellantrequires further consideration, taking into account the statutoryrequirements under Section 354(3) Cr.P.C. For awardingtermination of natural life, a careful scrutiny is required. [Para52][268-F-H; 269-A]

7. It is true that all murders are inhuman. For imposingcapital sentence, the crime must be uncommon in nature whereeven after taking into account the mitigating circumstances theCourt must be of the opinion that the sentence of imprisonmentfor life is inadequate and there is no alternative but to imposedeath sentence. The heinous and brutal nature of the commissionof crime, viz., brutal rape and murder of an eight-year old girlchild who is none other than the daughter of his own cousin, thattoo in a hapless situation, is definitely an aggravatingcircumstance. The nature of the injuries caused on the privateparts of the victim as is evident from the evidence of PW10 withExt.P17 report would definitely shock the conscience. At the sametime, the principles enunciated by this Court in the matter ofawarding of death sentence and in such circumstances, theundisputed and indisputable fact that the appellant had no criminalantecedents and he hails from a poor socio-economic backgroundand also his unblemished conduct inside the jail cannot gounnoticed. So also, it is a fact that at the time of commission ofthe offence the appellant was aged 25 years. Hence, viewing theissue taking into account the aforesaid aspects, this Court doesnot find any reason to rule out the possibility and the probabilityof the reformation and rehabilitation of the appellant. The longand short of the discussion is that the present case cannot beconsidered as one falling in the category of ‘rarest of rare cases’in which there is no alternative but to impose death sentence.[Para 56][273-C-F]

8. Thus, taking into account the fact that in the case onhand a hapless 8 year old girl child, who is none other than thedaughter of appellant’s cousin sister raped and murdered andthat too, in an extremely brutal manner revealed from theevidence on record, we are of the considered view that courseadopted in the decision in Swamy Shraddananda’s case andreiterated in Sriharan’s case has to be adopted in this case. In A

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Aother words, even while commuting capital punishment, theappellant has to be awarded life imprisonment without applicationof the provisions of premature release/remission for a substantiallength of period. On such consideration we are of the view that itwould be just and proper to award punishment of imprisonmentfor life to the appellant for the offence punishable under SectionB302 IPC, by providing for an actual imprisonment for a period of30 (thirty) years without application of the provisions of prematurerelease/remission. [Para 58][274-C-E]

9. In the circumstances, these appeals are partly allowedas hereunder: (i) The conviction of the appellant for the offencesCpunishable under Section 302 and 376(2)(i), IPC and convictionfor the offence punishable under Section 6 of POCSO Act is upheldand the sentences awarded to him for the conviction therefor,are confirmed, for the offence under Section 302 IPC; (ii) However,the death sentence awarded to the appellant for the offence underDSection 300, IPC punishable under Section 302, IPC is commutedto that of imprisonment for life with the stipulation that he shallnot be entitled to premature release or remission beforeundergoing actual imprisonment for a period of thirty (30) years;(iii) The other terms of sentences awarded to the appellantincluding fine amount and default stipulations also standEconfirmed. All the substantive sentences awarded to the appellantshall run concurrently. [Para 59][274-F-H; 275-A]

State of WB v. Mir Mohammed Omar and Ors. (2000) 8SCC 382 : [2000] 2 Suppl. SCR 712; Sunil v. State ofMadhya Pradesh (2017) 4 SCC 393; State of RajasthanFv. Kashi Ram (2006) 12 SCC 254 : [2006] 8 Suppl.SCR 501; Pattu Rajan v. State of Tamil Nadu (2019) 4SCC 771 : [2019] 5 SCR 535; Dalip Singh and Ors. v.State of Punjab reported in AIR 1953 SC 364 : [1954]SCR 145; State of West Bengal v. Dipak Haldar & Anr.G(2009) 7 SCC 288 : [2009] 8 SCR 530; R. Shaji v. Stateof Kerala (2013) 14 SCC 266 : [2013] 3 SCR 1172;Shankar Kishanrao Khade v. State of Maharashtra(2013) 5 SCC 546; Pappu v. State of Uttar Pradesh(Crl.A.No. 1097-1098 of 2018 decided by the Supreme Court); Union of India v. Sriharan (2016) 7 SCC 1 :[2015] 14 SCR 613 – relied on.

Rajendra Pralhadrao Wasnik v. State of Maharashtra(2019) 12 SCC 460 : [2018] 14 SCR 585; TahsildarSingh & Anr. v. State of UP AIR 1959 SC 1012 : [1959]Suppl. SCR 875; Pudhu Raja & Anr. v. State (2012) 11SCC 196 : [2012] 8 SCR 740; State of Haryana v.Bhagirath (1999) 5 SCC 96 : [1999] 3 SCR 529; Mohd.Arif v. Supreme Court of India (2014) 9 SCC 737 :[2014] 11 SCR 1009; Nizam and Anr. v. State ofRajasthan (2016) 1 SCC 550 : [2015] 10 SCR 786;Arabindra Mukherjee v. State of West Bengal (2011)14 SCC 352; Khurshid Ahmed v. State of Jammu &Kashmir (2018) 7 SCC 429 : [2018] 6 SCR 1121;Sukhar v. State of UP (1999) 9 SCC 507 : [1999] 3Suppl. SCR 314; Chanakya Dhibar v. State of WestBengal (2004) 1 Crimes 196; Govindaraju @ Govindav. State (2012) 4 SCC 722 : [2012] 5 SCR 67; JaharlalDas v. State of Orissa AIR 1991 SC 1388 : [1991] 2SCR 298; Mohd. Mannan @ Abdul Mannan v. State ofBihar (2011) 5 SCC 317 : [2011] 5 SCR 518; KansaBehera v. State of Orrisa AIR 1987 SC 1507 : [1987] 2SCR 1096; Trimukh Maroti Kirkan v. State ofMaharashtra (2006) AIR SCW 5300; SwamyShraddananda v. State of Karnataka (2008) 13 SCC767 : [2008] 11 SCR 93; Union of India v. Sriharan(2016) 7 SCC 1 : [2015] 14 SCR 613 - referred to.

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Case Law Reference

[2018] 14 SCR 585[1959] Suppl. SCR 875[2012] 8 SCR 740[1999] 3 SCR 529[2000] 2 Suppl. SCR 712(2017) 4 SCC 393[2014] 11 SCR 1009

[2022] 4 S.C.R.

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 5 & 6 of 2018.F

From the Judgment and Order dated 14.07.2016 of the High Courtof Madhya Pradesh, Bench at Gwalior in CRRFC No. 01 of 2015 andCrl. Appeal No. 39 of 2015.

Ms. Sonia Mathur, Sr. Adv., (SCLSC), Rishi Malhotra, PuneetGPathak, Sai Krishna, Advs. for the Appellant.

Pulkit Agarwal, Ms. Sakshi Vijay, Pashupathi Nath Razdan, Advs.for the Respondent.

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The Judgment of the Court was delivered by

C. T. RAVIKUMAR, J.

1. The appellant, who was to avuncularise being the cousin brotherof victim’s mother, was found to have stripped, stuprated and strangledto cause her death. The incident took place on 19.9.2014 between 08:30pm and 09:30 pm, inside the ruined bada (used in the sense ‘varanda’) ofJagan Sindhi, which is a dilapidated, worthless building, situated at ThakurDas Baba Road, Dabra in the district of Gwalior in Madhya Pradesh.Hereafter in this judgment it will be referred to as “occurrence place”only, for brevity. The victim was aged 8 years. The appellant, who is aconvict - awarded with capital sentence, calls in question the commonjudgment dated 14.7.2016 of the High Court of Madhya Pradesh atGwalior in Criminal Reference Case No.101/2015 titled as “State ofMadhya Pradesh vs. Veerendra” and in Criminal Appeal No.39/2015titled as “Veerendra Vs. The State of Madhya Pradesh”. Over the statedincident, Crime No.857/2014 was registered at Police Station, Dabra,soon after the noon of night, to be precise at 00:05 hrs on 20.09.2014.The appellant was arrested on 20.9.2014 at about 04:00 pm. Uponculmination of the trial for offences punishable under Sections 364A,376A, 376(2)(i), 302 and 201 of the Indian Penal Code (for short, “IPC”)and Section 6 of the Protection of Children from Sexual Offence Act,2012 (for short, “POCSO Act”) in Session Trial No.642/2014 before theCourt of IInd Additional Sessions Judge, Dabra, conviction was recordedagainst him for the offences punishable under Sections 302, 376A,376(2)(i) IPC and Section 6 of POCSO Act. Consequently, he wasawarded death sentence on first two counts, subject to confirmation bythe High Court and life sentence under the 3[rd] and 4[th] counts besidessentence of fine of Rs.2,000/- each, on all counts. All the substantivesentences were ordered to run concurrently. As ordered under the saidjudgment, in respect of sentence of capital punishment, reference wasmade to the High Court of Madhya Pradesh as CRRFC.01/2015. Theappellant herein filed Criminal Appeal No.39/2015 challenging hisconviction for the stated offences and consequential sentences imposedtherefor. As per the common judgment, the High Court partly allowedthe appeal as well as the reference made to it as hereunder: - “In the result, the appeal filed by the appellant is hereby partlyallowed. His conviction as well as sentence of offence underSection 376A of IPC is hereby set aside on technical ground B

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Awhereas the conviction and sentences of offence under Sections376(2)(i) and 302 IPC and Section 6 of the POCSO Act recordedby the trial court are confirmed. The reference sent by the trialcourt is partly accepted. Death sentence recorded for the offenceunder Section 302 IPC is hereby confirmed by us.”

BHence these appeals.

2. Briefly stated, the prosecution case is as follows:

Laxmibai Batham (PW-1) and Shri Ganesh are the parents of thedeceased minor girl aged 8 years. Brij Lal (PW-2) and Janki (PW-3) areher maternal grand- parents. PW-1 is the cousin sister of the appellant-Cconvict. In other words, the appellant-convict is an uncle (mama) of thedeceased minor girl. The incident occurred between 08:30 pm and 09:30pm on 19.9.2014. On that fateful day at about 08:30 pm, Raju Badam,who is the father of the appellant, sent her to purchase a bundle of bidifrom a nearby shop. While proceeding to the shop she went past theDhouse of Sri Patiram Basudev @ Pappu (PW-4). The appellant whowas there, with PW-4 and one Rakesh, happened to see her. Theygathered there for drinking. Upon seeing the victim, the appellant askedher whither she was going and then, he followed her after promising theretinue that he would return. Thereafter she was found missing. After afervent, futile search till midnight at 00:05 hrs on 20.09.2014 PW-1 lodgedEExt.P1-complaint about her missing. On 20.09.2014 itself, uponinterrogation of the appellant and the aforesaid Rakesh and PatiramBasudev @ Pappu, the appellant was arrested. While in custody, theappellant made Ext.P5-disclosure Statement and thereafter, at hisinstance, the victim’s corpse concealed underneath gunny bags, wasFrecovered. A team of two doctors conducted autopsy on the body of thedeceased and the post-mortem and the forensic science laboratory(FSL)reports revealed commission of rape in a diabolically and gruesomemanner and causing of death by throttling. Subsequent to the filing of thefinal report and committal of the case, the trial Court initially framedcharges against the appellant for offences punishable under SectionsG364A, 376(2)(i), 302, 201 IPC and under Sections 3, 5 and 6 of thePOCSO Act. After the commencement of the trial vide order dated16.12.2014, charge for offence under Section 376A was also framedagainst the appellant.

3. Before the trial Court, for establishing the aforesaid chargesHagainst the appellant, the prosecution had examined PWs 1 to 19 and marked exhibits P-1 to P-26 documents besides identifying the materialobjects. In the examination under Section 313 of the Code of CriminalProcedure (for short ‘Cr.P.C.’) the appellant had failed to explain theincriminating circumstances against him. Though he was asked to enteron his defence he did not adduce any evidence. Upon analyzing theevidence on record, viz., the chain of events and circumstantial evidencethereof, the trial Court convicted and sentenced him as afore-stated. Itis in reappreciation of the said chain of events and the circumstantialevidence that the High Court partly allowed the aforesaid appeal andalso the Criminal Reference Case, in the stated manner.

4. In these appeals the appellant has candidly stated thus:- “The Petitioner at the very outset and with great respect confinesthis petition with regard to the aspect of the sentencing awardedby the courts below.”

After having stated thus the appellant has, virtually, raised variouscontentions to challenge the very common judgment dated 14.07.2016itself. Still, it will not be inappropriate to refer to ‘the questions of law’framed under “A” and “B” in the contextual situation. They read ashereunder: - “A. Whether the conviction of the petitioner u/s 302 IPC issustainable in view of the medical evidence on record whichcategorically suggested the fact that the deceased had died dueto injuries sustained on her private part?

B. Whether any intention to murder a prosecutrix can be attributed,the death of which has occurred in the course of commission ofalleged rape?”

5. In spite of the stated nature of the contentions, the circumstancesand also what would be deducible therefrom we are inclined to considerthe appeal, on all permissible grounds, taking note of the fact that theappellant herein has been handed down capital sentence for the convictionunder 302 IPC, based on circumstantial evidence. However, we cannotbe unmindful of the scope and delineated contours of an appeal by specialleave under Article 136 of the Constitution of India. It is worthy to notethat in such an appeal, unlike in a regular appeal, this Court would notundertake the exercise of an indepth consideration by way of re-appreciation of evidence. Normally, in such an appeal only in rare and AB

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Aexceptional cases wherein manifest illegality appears to have infectedthe impugned judgment (going by the case of the appellant) concernedthat this Court will go beyond the stated scope of an appeal by specialleave. In this case, the trial Court convicted the appellant based oncircumstantial evidence and the High Court though partly allowed theappeal and the reference by setting aside the conviction under SectionB376A IPC maintained the conviction and the sentences imposed for theother offences based on circumstantial evidence. That apart, the HighCourt disagreed with the findings of the trial Court as to the admissibilityand evidentiary value of the underwear seized from the occurrence place(Art. F described as shaddy), upon treating it to be that of the appellant.CIn the circumstances thus obtained an exercise to reassure as to theexistence of a complete chain of circumstances pointing to the guilt ofthe appellant alone, in exclusion of every hypothesis compatible with hisinnocence, is to be undertaken.

6. In the adjudicative pursuit the trial Court obviously consideredDthe following circumstances: -

a) Post Mortem report together with the expert opinion ofPW-10, the Doctor who conducted autopsy on the body ofthe deceased and Ext.P24 - FSL report revealing that thevictim was raped and murdered; Eb) The deceased was aged about 8 years and therefore, fell withinthe definition of ‘child’, under Section 3 of the POCSO Act;

c) The deceased was lastly seen with the accused at about 08:30pm on 19.09.2014 and thereafter she was found raped andmurdered;F

d) After 09.00 pm on 19.09.2014 the accused was seen comingout of the Bada of the ‘occurrence place’; e) Based on the disclosure statement of the accused (Ext.P5)and at his instance the nude dead body of the victim, concealedbeneath gunny bags, was recovered from the ‘occurrenceGplace’; f)Finger nail scratches were found on the body of the accused;

g) Clothes of the deceased were recovered in consequent to theinformation given by the accused;H

h) Semen was present in the vaginal swab as also on the clothesAof the accused and the deceased;

i)Human blood was found on the gunny bags and also the clothesof both the accused and the deceased; j)Additional link on account of the failure on the part of theaccused to explain the incriminating circumstances put to himduring the examination under Section 313, Cr.P.C.

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7. As stated earlier, as per the impugned common judgment in theappeal as also in the reference made to the High Court for confirmationof the death sentence, the High Court set aside the conviction underSection 376A IPC. We may hasten to add that in spite of such interferenceno appeal(s) has been filed by the prosecution. It is true that despitesuch interference the High Court has concurred with the conviction forthe offence punishable under Section 302 IPC and confirmed the capitalsentence awarded by the trial Court. The High Court has also sustainedthe conviction for the other offences and also the sentences imposedtherefor. What is noticeable is that even while concurring with theconviction and the sentences imposed as stated above, on certainconclusions such as the underwear found at the place of occurrence asthat of the appellant there is no concomitancy among the trial Court andthe High Court. The conviction under Section 376A IPC was actuallyinterfered with on technical reasons. It is bearing in mind the aforesaidaspects and circumstances that the rival contentions are to be advertedto and appreciated.

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8. Heard Ms. Sonia Mathur, learned Senior Counsel appearing asAmicus Curiae and Mr. Pashupatinath Razdan, learned Standing Counselfor the State of Madhya Pradesh. These appeals were heard togetherand this judgment will dispose both of them.

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9. The learned Amicus Curiae appearing for the appellant submittedthat the conviction of the appellant is founded on circumstantial evidencesand a scanning of the materials on record and the circumstances reliedon for his conviction, would reveal that the chain of circumstances wasnot complete. Furthermore, it is submitted that even a cursory glance ofsuch evidence and the materials relied on would reveal that the appellantwas entitled to get the benefit of doubt. Dilating the contentions it issubmitted that there is no medical evidence pointing to the presence ofthe accused in the place of occurrence. Though blood and semen were G

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Afound on the pants of the appellant recovered from his house on the nextday of the occurrence, the FSL report is inconclusive and it did not connectthe appellant to the blood and semen found on the clothes of the deceased.Following contentions were also raised on behalf of the appellant: - “that as per the report, in the matter of analyzation of the samplesBbenzidine/ phenolphthalein and crystal tests were conducted andamong them crystal test alone is a conclusive test. Ergo, in theabsence of worksheet to demonstrate the nature of tests conductedon each of the items the report and the respective conclusionsought to have been discarded; that though in the list of articlesseized from the house of the appellant and sent for examination,Cthe pants seized from his house was described as the one wornby him at the time of the incident none of the witnesses had testifiedthe fact that it was the same which he was wearing on the day ofoccurrence; that the MLC of the appellant was conducted in clearviolation of Section 53A of the Cr.P.C.; that as relates nail scratchesDfound on the face and neck of the appellant, allegedly caused bythe victim, the evidence regarding the scratches is unreliable asdespite the collection of nail samples of the deceased by PW-10they were not sent to the laboratory for analysis.”

10. It is the further contention on behalf of the appellant that though,EPW-14 testified that the finger nail injuries were seen on the right cheekof the appellant, his MLC would indicate finger nail injuries only on theleft side of the face and neck. At any rate, no reliance should have beengiven on that issue as the appellant was in the custody of the police evenbefore his formal arrest, as spoken by PW-4. It was also contended thatthe date of birth of the victim was not proved by producing the schoolFrecords. Furthermore, it was contended that the conclusion that thedeceased was lastly seen in the company of the accused was arrived atrelying on the oral testimonies of PW-2 and PW-4 without properappreciation of various relevant aspects. According to the appellant neitherPW-2 nor PW-4 had informed about the same to the police at the firstGinstance, i.e., at the time of lodging complaint regarding missing of thevictim. The non-examination of one Rakesh who, according to theprosecution, joined PW-4 and the appellant for drinking during that nightand that of Sri Ganesh, the father of the deceased, who was an attestingwitness to certain mahazars for the recoveries and seizures, is fatal tothe case of the prosecution. In regard to the testimony of PW-12 that heH

had seen the appellant coming out of the bada of Jagan Sindhi, in thenight of 19.09.2014 at about 09:00 pm, it is submitted that it ought not tohave been taken as a link in the chain of circumstances, as his statementunder Section 161 Cr.P.C. was taken belatedly. May be as an alternativecontention it is contended that PW-12 is a chance witness and histestimony is not creditworthy.

11. As relates, another link in the chain of circumstances viz., therecovery of the body and clothes of the deceased at the instance of theappellant it was contended that no independent witness was examinedto prove the same. In that regard, it was further submitted that therecoveries and seizure ought not to have been taken as proved byPW-2 as he is a related witness being the maternal grandfather of thedeceased. It was contended that the clothes of the appellant allegedlyrecovered from his house were not sealed and therefore, the failure ofthe appellant to explain the presence of human blood and semen on hisclothes recovered from his house, could not have been relied on as acircumstance against him. In that regard, it was further contended thatno DNA test was conducted to connect the appellant to the samplesfound on the body of the deceased and thereby Section 53A Cr.P.C.,was violated. Based on the aforesaid contentions, the learned AmicusCuriae submitted that the conviction founded on circumstantial evidenceis unsustainable on account of such glaring discrepancies, lacuna andthe stated lapses on the part of the prosecution. At any rate, thecircumstances relied on would not establish continuity in the links of thechain of circumstances to lead to an irresistible conclusion regarding theguilt of the appellant. The nub of the contentions is that appellant isentitled to get the benefit of doubt in view of such circumstances and assuch, the conviction and sentence awarded are liable to be set aside andhe is entitled to be acquitted.

12. On the contrary, the learned counsel for the State sought toget sustained the judgment contending that the concurrent findings andthe reasons assigned therefor, are nothing but outcome of proper analysisand appreciation/re-appreciation of evidence on record, by the trial Courtand the High Court. The learned counsel urged that the contention basedon failure to comply with Section 53A Cr.P.C. is absolutely bereft of anybasis or merits as after rightly construing the position of law under Section53A Cr.P.C., the High Court had properly appreciated the remainingevidence to arrive at the conclusion that the prosecution had succeeded AB

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Ain establishing a complete chain of circumstances pointing to the guilt of7the appellant alone. It was contended that the testimonies of PWs 2, 4and 12 are uncontroverted and credible and, therefore, rightly acceptedand acted upon by the trial Court and the High Court. Though, PWs 2and 4 were thoroughly cross-examined on behalf of the appellant, nothingcould be elicited to discredit their version that they had seen the deceasedBlastly in the company of appellant, just under an hour before thecommission of the gruesome acts of rape and murder. Hence, the ‘lastseen theory’ was rightly applied, it was submitted. PW-12 is a chancewitness and his version that he had seen the appellant coming out of thebada of Jagan Sindhi abutting Thakur Das Baba Road around 09:00 pmCon 19.09.2014, was rightly accepted as the appellant had neithersucceeded in eliciting anything to discredit his version nor offered anyalternative possible explanation for his presence at that time near theplace of the incident. With respect to the appellant’s contention of non-examination of independent witness to prove the recovery of the bodyand clothes of the deceased, at the instance of the appellant from theDplace of occurrence, the learned counsel submitted that their recoverywas rightly taken as proved through PW-2 and his being the maternalgrandfather of the deceased is no ground at all to discredit his evidenceor to raise such a contention. The ocular evidence of PW-16 (Mr. JitendraNagaich) - a Police Officer who was party to the police team whichEconducted investigation and present at the time of such recovery, ofPW-5 (Mr. Sonish Vashishtha)- who is a reputed journalist, of PW-14(Akhilesh Bhargava) - the then Senior Scientific Officer, Gwalior, ofPW-15 (Balakrishna) - the police photographer and of PW-11(Mr. Deepak Shukla) who was the then Tehsildar and ExecutiveMagistrate of the locality and present at the place of occurrence uponFdirection by the Sub-Divisional Magistrate concerned, lent support tothe evidence of PW-2, on the said aspects, it was submitted. He drewour attention to the other circumstantial evidence, relied on to enterconviction by the trial Court and the High Court to contend that takentogether all those circumstances would form a complete chain pointingGto the fact that the appellant alone is the culprit and that they areincompatible with any hypothesis of his innocence. In short, it wassubmitted by the learned counsel appearing for the State that thecontentions raised on behalf of the appellant do not merit any seriousconsideration and the appeal is liable to be dismissed.

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13. In the light of the rival contentions, we have to examine whetherthe conviction of the appellant for the stated offences and the sentencesimposed therefor warrant interference. In this case, the appellant hasbeen awarded death sentence for the conviction under Section 300 IPC.The conviction is based on circumstantial evidence. Rarely, death penaltywould be awarded if the conclusion on the connection of the accusedwith the offence(s) is fixed based on circumstantial evidence. It is truethat even in such cases existence of exceptional circumstances/specialcircumstances would make death penalty awardable. This position wasreiterated by this Court in the decision in Rajendra Pralhadrao WasnikVs. State of Maharashtra [(2019) 12 SCC 460]. We need to dilateon this issue only if the challenge of the appellant against the convictionfor the offence punishable under Section 302 IPC is repelled.

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14. Obviously, there is concurrent finding in favour of theprosecution as relates the first circumstance viz., the victim was rapedand murdered. In order to establish the same, the prosecution mainlyrelied on the expert opinion of Dr. D.C. Arya (PW-10), who performedautopsy on the body of the deceased along with Dr. Asha Singh, andExt.P17 post-mortem report proved by him wherein all the ante-morteminjuries are noted. PW-10 deposed that post-mortem was jointly performedby him and Dr. Asha Singh and Ext.P17 report was prepared by him inhis handwriting. Hence, his competency as a witness is indisputable.While being examined, he deposed thus on the ante-mortem injuries foundon the body of the deceased :- D

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1. Wound 3 inch x 2.5 cm., on inside direction of little finger;

2. Abrasion 3.5 inch x 2.5 cm. on left side of Labia Majora.

3. Contusion 4 cm. X 5 cm. on upper side of right thigh.F

4. Contusion 4 cm. X 3 cm. on upper side of left thigh.

5.3.5 inch x 2.5 cm. vaginal perennial tear of grade fourthextended up to anus.

6. Swelling and congestion were present on entire vagina.GUterus was torn and coming out from vagina.

7.8 cm x 2 cm. petechial hemorrhage was present underneaththe sub cutaneous tissues of the neck extending from leftside to right side of the neck.

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A15. As per Ext.P17 post-mortem report the cause of death is‘asphyxia due to throttling’. PW-10 - Dr. D.C. Arya had also deposed tothat effect. However, the contention of the appellant is that when recalledand cross-examined, subsequent to the addition of charge under Section376A IPC against the appellant, PW-10 would depose that the reason ofdeath could possibly be a ruptured uterus with excessive bleeding.BHowever, on scrutiny of his testimony, we did not find anything to suggestthat PW-10 was prevaricating. His version was to the effect that deathwould be possible going by the nature of injury Nos.7 and 8. ‘It is incorrectto say that today I am wrongly stating the death to have occurred due toinjuries No. 7 & 8,’ he deposed with reference to the following injuries :-C

1. The vaginal perineal tear of 3.5 inch x 2.5 cm of grade fourthextended up to anus.

2. Swelling and congestion were present on entire vagina. Uteruswas torn and coming out from vagina.

DAttempt on the part of the appellant is to depict and bring it as anincongruence in the opinion of PW-10 regarding the cause of death andultimately to canvass the position that the case would not fall underSection 300 IPC punishable under Section 302 IPC.

16. In the context of the contentions it is only apposite to refer toEthe following aspects as also the probative value of the deposition of adoctor, deposing as an expert. Post-mortem certificate is a medico-legalcertificate and it contains two parts. The first being the facts as foundby the doctor who conducted the autopsy, such as the number of injuries(including ante-mortem), position of injuries and their extent etc., andthe second part being his expert opinion as to the cause of death. ThoughFthe opinion of the doctor given with the support of post-mortem report isentitled to get great weight, the court cannot abdicate its function as theultimate opiner. Taking into account the ocular and medical evidenceand upon their deeper analysis, the court has to form and record itsopinion as to the cause of death for the purpose of finding out whetherGthe death involved in a given case is accidental or suicidal or homicidal,in nature. In the decisions in Tahsildar Singh & Anr. Vs. State of UP(AIR 1959 SC 1012) and Pudhu Raja & Anr. Vs. State [(2012) 11SCC 196] this Court virtually held it as the duty of the Court to separatethe chaff from the husk and to dredge the truth from the pandemoniumof statements.H

16.1 In the decision in State of Haryana Vs. Bhagirath [(1999)5 SCC 96] this Court held :

“The opinion given by a medical witness need not be the lastword on the subject. Such an opinion shall be tested by the Court.”

16.2 In the decision in Mayur Panabhai Shah Vs. State ofGujarat [(1982) 2 SCC 396], while allowing an appeal by special leavefiled against a judgment of Gujarat High Court summarily dismissing anappeal preferred against an order convicting the appellant for the offenceunder Section 376 IPC, this Court held :

“We think that this is not a case which should have been summarilyrejected by the Learned Single Judge and moreover we do notthink the Learned Judge was right in observing that, “our courtshave always been taken the doctors as witnesses of truth”. Evenwhere a doctor has deposed in court, his evidence has to beappreciated like the evidence of any other witness and there is noirrebuttable presumption that a doctor is always a witness of truth.”

16.3 In the decision in State of WB Vs. Mir Mohammed Omarand Ors. reported in (2000) 8 SCC 382 (referred to hereinafter to as‘Mir Mohammed Omar’s case’ only), this Court held thus :

“21. The post-mortem report made by PW30 (Dr DebabrataChaudhary) shows that the victim was murdered. He noticed asmany as 45 injuries on the dead body which included fracture of 5ribs (2-6) on the left side towards sternal and, fracture of some ofthe fingers and extravasation of blood on the right side of occipitalregion and also on the situs of the rib fractures. The remaininginjuries included a few lacerated wounds, contusions andaberrations. There was just one minor incised wound on the leftpinna. The right lung was congested the doctor opined that thedeath of the deceased had resulted from multiple injuries andinjuries of vital organs and it was homicidal in nature.

22. The trial court made a fallacious conclusion regarding thedeath of the deceased on the premise that the Public Prosecutordid not elicit from the doctor as to whether the injuries weresufficient in the ordinary course of nature to cause death. TheSessions Judge concluded that on the said issue:

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“There being no evidence on record to show that the injurieswere sufficient in the ordinary course of nature to cause death,it cannot be said that the injuries noticed by the autopsy surgeon(PW30) were responsible for causing the death of the deceasedMahesh.”

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B23. No doubt it would have been of advantage to the court if thePublic Prosecutor had put the said question to the doctor when hewas examined. But mere omission to put that question is not enoughfor the court to reach wrong conclusion. Though not an expert asPW30, the Sessions Judge himself would have been an experiencedjudicial officer looking at the injuries he himself could have deducedCwhether those injuries were sufficient in the ordinary course ofnature to cause death. No sensible man with some idea regardingthe features of homicidal cases would come to a differentconclusion from the injuries indicated above, the details of whichhave been stated by the doctor (PW30) in his evidence.

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16.4 Pithily stated, in the light of the decisions referred (supra) itcan only be said that like any other evidence, the expert opinion alsorequires proper appreciation at the hands of the Court, though the opinionof the doctor given with the support of post-mortem report carries greatEweight, for arriving at the rightful conclusion as to question whether thedeath involved is homicidal or not.

17. Bearing in mind the position derived from the decisions referred(supra) we will consider the question whether the concurrent findingthat the death of the victim was homicidal in nature calls for interference.FAs noted earlier, in holding so, the oral testimony of PW-10 with Ext.P17post mortem report was relied on by the Courts. Obviously, PW-10 whoconducted the post mortem on the body of the deceased, with the supportof Ext.P17 prepared by him, deposed that the deceased had sustainedthe stated ante-mortem injuries, as indicated specifically in Ext.P17 report.GThe presence of such ante-mortem injuries on the body of the deceasedis not in dispute. The alleged incongruence was only with reference tothe opinion of PW-10 as to the cause of death. PW-10 opined ‘Asphyxiadue to throttling’ as the cause of her death. He deposed about the presenceof petechial hemorrhage of the size 8 cm. x 2 cm., underneath the sub-cutaneous tissues of the neck extending from left side to right side. In H

fact, these aspects were specifically mentioned in Ext.P17, as well. Now,we will consider some aspects of asphyxia. When the respiratoryfunctions of lungs stop as a result of lack of oxygen, it causes failure ofheart due to oxygen deprivation and this mode of death is called Asphyxia.Asphyxia can occur due to external pressure like strangulation, to closeair passages. Strangulation is a violent form of death which occurs fromconstriction of the neck by means of ligature or by other means withoutsuspending the body and throttling is strangulation by constriction of neckproduced by fingers or palms. Post mortem appearance of death byAsphyxia includes numerous petechial hemorrhages seen under the serousmembranes of various organs due to rupture of capillaries caused as aresult of increased pressure in them. PW-10 deposed about the presenceof petechial hemorrhage underneath the subcutaneous tissues of theneck extending from left side to right side. Though, PW-10 was cross-examined nothing could be elicited from him to discredit his version.When that be the circumstances, the trial Court and the High Courtwere justified in giving weight to the oral testimony of PW-10 withExt.P17 report, to form the opinion as to the cause of death as Asphyxiaby throttling.

18. It is also worthy to take note of the injuries sustained by thedeceased on her private parts in the context of the contentions and inview of the nature of the evidence tendered by PW-10. He would depose,with the support of Ext.P17, that the deceased had sustained perennialtear of grade fourth extending upto anus of the size 3.5 cms x 2.5 cms.He also deposed that swelling and congestion were present on entirevagina and that her uterus was torn and was coming out of the vagina.PW-10 deposed that all those injuries were ante-mortem. The abovefactual aspects contained in Ext.P17 report regarding the ante-morteminjuries and their positions proved through PW-10 were also taken intoaccount by the trial Court. The injury referred above supporting theopinion of cause of death as Asphyxia due to throttling and the gravenature of the pudical injuries referred above sustained by the deceased,evidently, made the trial Court and the High Court to form the opinionthat the death of the deceased girl was homicidal in nature. Both theCourts, evidently concluded that Asphyxia by throttling is the cause ofdeath and further that the grave injuries sustained by her on the privateparts were also sufficient to cause death in the ordinary course of nature.The aforesaid contention of the appellant did not commend to us in the AB

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Acircumstances and also taking note of their combined effect. In short,we have no hesitation to hold that the concurrent finding that the deathof the victim was homicidal in nature invites no interference.

19. We will consider the contentions of the appellant that convictionfor the offence punishable under Section 302 IPC, consequent to theBfinding that the victim was murdered, is unsustainable and that if at all heis guilty of causing her death the offence attracted would only be underSection 304 IPC, a little later.

20. In the light of the graveness of the injuries sustained on theprivate parts by the deceased, as detailed above in Ext.P17 post-mortemCreport proved by PW-10 and also taking note of Ext.P21 FSL reportrevealing the presence of blood and semen in the vaginal swab of thedeceased, the trial Court held that the deceased was subjected to rape.The High Court also carefully considered the nature of the said injuriesand the factum of presence of blood and semen in the vaginal swabtaken from the deceased and sustained the finding that the deceasedDwas subjected to rape. In the light of the nature of the evidence thusobtained and also the way in which they were analysed and appreciated,we find no illegality or perversity at all with the concurrent finding thatthe deceased was subjected to rape.

21. Obviously, both the trial Court and the High Court answeredEthe question as to who is the author of the crimes by relying on thecircumstantial evidence. We have already taken note of the variouscircumstances relied on by the trial Court and subsequently by the HighCourt, to fix culpability on the appellant. Though the Courts concurrentlyfound him guilty of the offences of rape and murder there is lack ofFconcomitancy in respect of conclusions/findings on certain aspects andcircumstances, as noted above. Before adverting to the said issue, it isonly proper to deal with a crucial contention of the appellant founded onSection 53A of the Code of Criminal Procedure, which was added to theCode by Cr.P.C. (Amendment) Act, 2005 (Act 25 of 2005). The relevantportion of Section 53A(1) reads thus :-G

“[53A. Examination of person accused of rape by medicalpractitioner.-(1) When a person is arrested on a charge ofcommitting an offence of rape or an attempt to commit rape andthere are reasonable grounds for believing that an examination ofhis person will afford evidence as to the commission of such H

offence, it shall be lawful for a registered medical practitioneremployed in a hospital run by the Government or by a local authorityand in the absence of such a practitioner within the radius ofsixteen kilometers from the place where the offence has beencommitted by any other registered medical practitioner acting atthe request of a police officer not below the rank of a sub-inspector,and for any person acting in good faith in his aid and under hisdirection, to make such an examination of the arrested personand to use such force as is reasonably necessary for that purpose.”

22. The above extracted provision under Section 53A(1) Cr.P.C.would go to show that it provides for a detailed examination, (whichterm has been explained under Explanation (a) to Section 53A Cr.P.C.),of a person accused of an offence of rape or attempt to commit rape, bya registered medical practitioner employed in a hospital run by theGovernment or by a local authority and in the absence of such a practitionerwithin the radius of 16 kilometers from the place where the offence hasbeen committed, by any other registered medical practitioner. It is thesaid legal provision and the undisputed factual position of non-conductof DNA profiling of the samples of the appellant that made him to takeup the contention of violation of Section 53A Cr.P.C. In the saidcircumstances, he would further contend that there is absence ofconclusive evidence to connect him with the samples taken from thebody of the deceased. Certainly, non-conduct of DNA profiling in termsof the provisions under Section 53A Cr.P.C., is a flaw in the investigation.But then, the question emerged from the aforesaid indisputable positionof not holding DNA profiling is whether the conviction of the appellantfor the said offences, is liable to be set aside on that sole score.

23. There can be no doubt with respect to the position that a fairinvestigation is necessary for a fair trial. Hence, it is the duty of theinvestigating agency to protect the rights of both the accused and thevictim by adhering to the prescribed procedures in the matter ofinvestigation and thereby to ensure a fair, competent and effectiveinvestigation. Even while holding so, we cannot be oblivious of the well-nigh settled position that solely on account of defects or shortcomings ininvestigation an accused is not entitled to get acquitted. In other words,it also cannot be the sole reason for interference with a judgment ofconviction if rest of the evidence are cogent enough to sustain the same.

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A24. In the decision in Mir Mohammad Omar’s case (supra),this Court held :- “In our perception it is almost impossible to come across a singlecase wherein the investigation was conducted completely flawlessor absolutely foolproof. The function of the criminal courts shouldBnot be wasted in picking out the lapses in investigation and byexpressing unsavoury criticism against investigating officers. Ifoffenders are acquitted only on account of flaws or defects ininvestigation, the cause of criminal justice becomes the victim.Effort should be made by courts to see that criminal justice is”salvaged despite such defects in investigation.

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25. In the context of the contentions it is more appropriate torefer to the decision of this Court in Sunil Vs. State of Madhya Pradesh[(2017) 4 SCC 393]. It was a case of rape and murder of a four (4)Dyear old child. A three-Judge Bench held herein thus :

“3. At the very outset, we deal with the arguments advanced onbehalf of the appellant that in the present case the report of DNAtesting of the samples of blood and spermatozoa under Section53-A of the Code of Criminal Procedure, 1973 has not been provedEby the prosecution. The prosecution has, therefore, failed to proveits case beyond reasonable doubt. Reliance in this regard has beenplaced on the decision of this Court in Krishan Kumar Malik v.State of Haryana [(2011) 7 SCC 130.

4. From the provisions of Section 53-A of the Code and the decisionof this Court in Krishan Kumar it does not follow that failure toconduct the DNA test of the samples taken from the accused orprove the report of DNA profiling as in the present case wouldnecessarily result in the failure of the prosecution case. As held inKrishan Kumar (para 44), Section 53-A really “facilitates theprosecution to prove its case”. A positive result of the DNA testwould constitute clinching evidence against the accused if,however, the result of the test is in the negative i.e. favouring theaccused or if DNA profiling had not been done in a given case,the weight of the other materials and evidence on record will stillhave to be considered. It is to the other materials brought on recordby the prosecution that we may now turn to.”

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26. Krishna Kumar Malik’s case (referred supra) was renderedby a two-Judge Bench of this Court, wherein at paragraph 43 with respectto the matching of the semen, the following passage from Taylor’sPrinciples and Practice of Medical Jurisprudence, 2[nd] Edn. (1965) wasextracted thus :- “Spermatozoa may retain vitality (or free motion) in the body of awoman for a long period, and movement should always be looked for in wet specimens. The actual time that spermatozoa mayremain alive after ejaculation cannot be precisely defined, but isusually a matter of hours. Seymour claimed to have seenmovement in a fluid as much as 5 days old. The detection of deadspermatozoa in stains may be made at long periods of 5 years.Non-motile spermatozoa were found in the vagina after a lapseof time which must have been 3 and could have been 4 months.”

In paragraph 43 of Krishna Kumar Malik’s case, afterextracting the above, it was further held :

“Had such a procedure been adopted by the prosecution, then itwould have been a foolproof case for it and against the appellant.”

This Court went on to hold thus in Paragraph 44 therein :- “Now, after the incorporation of Section 53-A in the CriminalProcedure Code w.e.f. 23.6.2006, brought to our notice by thelearned counsel for the respondent State, it has become necessaryfor the prosecution to go in for DNA test in such type of cases,facilitating the prosecution to prove its case against the accused.”

27. Evidently, the three Judge Bench in Sunil’s case (supra)considered Krishna Kumar Malik’s case carrying such observationsand finding before coming to the conclusion that ‘a positive result of theDNA test would constitute clinching evidence against the accused if,however, the result of the test is in the negative i.e., favouring the accusedor if DNA profiling had not been done in a given case, the weight of theother materials and evidence on record will still have to be considered’.

28. In view of the nature of the provision under Section 53A Cr.P.Cand the decisions referred (supra) we are also of the considered viewthat the lapse or omission (purposeful or otherwise) to carry out DNAprofiling, by itself, cannot be permitted to decide the fate of a trial for theoffence of rape especially, when it is combined with the commission of A

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Athe offence of murder as in case of acquittal only on account of such aflaw or defect in the investigation the cause of criminal justice wouldbecome the victim. The upshot of this discussion is that even if such aflaw had occurred in the investigation in a given case, the Court has stilla duty to consider whether the materials and evidence available on recordbefore it, is enough and cogent to prove the case of the prosecution. InBa case which rests on circumstantial evidence, the Court has to considerwhether, despite such a lapse, the various links in the chain ofcircumstances forms a complete chain pointing to the guilt of the accusedalone in exclusion of all hypothesis of innocence in his favour.

29. As a matter of fact, the decision in Rajendra PralhadraoCWasnik’s case (supra), would also fortify our view. The Bench wasconsidering review petitions in Criminal Appeal Nos.145-146 of 2011.That was a case involving rape and murder of a three (3) year old girlwhere the case was held as proved on the basis of circumstantial evidence.So also, in that case DNA evidence was not produced before the Court, Din spite of samples being taken. Obviously, taking note of the unerringnature of the circumstantial evidence pointing only to the guilt of theaccused and the other circumstances the trial Court convicted andawarded him capital punishment. The High Court confirmed not onlythe conviction but also the award of capital sentence. Originally, thisCourt dismissed the appeals and thereafter, the dismissed review petitionsEwere restored for consideration solely in view of a Constitution Benchdecision of this Court in Mohd. Arif Vs. Supreme Court of Indiareported in (2014) 9 SCC 737. In paragraph 79, this Court in RajendraPralhadrao Wasnik’s case held therein thus :-“Insofar as the present petition is concerned, we are of opinionFthat for the purposes of sentencing, the Sessions Judge, the HighCourt as well as this Court did not take into consideration theprobability of reformation, rehabilitation and social re-integrationof the appellant into society. Indeed, no material or evidence wasplaced before the courts to arrive at any conclusion in this regardGone way or the other and for whatever it is worth on the facts ofthis case. The prosecution was remiss in not producing the availableDNA evidence and the failure to produce material evidence mustlead to an adverse presumption against the prosecution and infavour of the R.P. (Crl.) Nos. 306-307 of 2013 in Crl. AppealNos.145-146 of 2011 Page 43 of 43 appellant for the purposes ofH

sentencing. The Trial Court was also in error in taking intoconsideration, for the purposes of sentencing, the pendency oftwo similar cases against the appellant which it could not, in law,consider. However, we also cannot overlook subsequentdevelopments with regard to the two (actually three) similar casesagainst the appellant.”

30. In the light of the above referred decisions, the contentions ofthe appellant founded on the factum of non-holding of DNA profilingand the provision under Section 53A, is only to be repelled. As held inSunil’s case (supra), a positive result of DNA test would constituteclinching evidence against the accused. But, a negative result of DNAtest or DNA profiling having not been done would not and could not, forthat sole reason, result in failure of prosecution case. So much so, evenin such circumstances, the Court has a duty to weigh the other materialsand evidence on record to come to the conclusion on guilt or otherwiseof the appellant herein and that exactly what was done by the trial Courtand then by the High Court, in the instant case.

31. Now, we will refer to other materials and evidence on record.PW-3, who is the maternal grandmother of the deceased deposed thatthe deceased was aged 8 years and was wearing a frock and jeans panton the day of occurrence. She would further depose that herself and thedeceased were in the house of Raju who is none other than the father ofthe appellant. As already noted, they are all relatives. PW-3 would deposethat by about 08:30 pm Raju Badam sent the deceased for fetching abundle of bidi from a nearby shop. Since then, she had not returnedhome alive.

32. The case unfolded by the prosecution through the witnessesto fix the culpability on the appellant constitute a chain of circumstances,including the “last seen theory”. The deceased was lastly seen with theappellant by PW-2 and PW-4. ‘Last seen theory’ is certainly applicablein a crime like the one on hand which was carried out on sly and insecrecy during night, in the absence of availability of any eye-witnesses.

32.1 In the decision in Nizam and Anr. Vs. State of Rajasthan[(2016) 1 SCC 550] this Court held that it would not be prudent to baseconviction solely on ‘last seen theory’. This Court, obviously, sounded acaution that where time gap between ‘last seen’ and ‘time of occurrence’is long it would be unsafe to base the conviction solely on the ‘last seen A

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Atheory’ and held that in such circumstances, it is safer to look forcorroboration from other circumstances and evidence adduced by theprosecution.

32.2 In State of Rajasthan Vs. Kashi Ram reported in (2006)12 SCC 254, at paragraph 23 this Court held :

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“23. It is not necessary to multiply with authorities. The principleis well settled. The provisions of Section 106 of the Evidence Actitself are unambiguous and categoric in laying down that whenany fact is especially within the knowledge of a person, the burdenof proving that fact is upon him. Thus, if a person is last seen withCthe deceased, he must offer an explanation as to how and whenhe parted company. He must furnish an explanation which appearsto the court to be probable and satisfactory. If he does so he mustbe held to have discharged his burden. If he fails to offer anexplanation on the basis of facts within his special knowledge, hefails to discharge the burden cast upon him by Section 106 of theDEvidence Act. In a case resting on circumstantial evidence if theaccused fails to offer a reasonable explanation in discharge of theburden placed on him, that itself provides an additional link in thechain of circumstances proved against him. Section 106 does notshift the burden of proof in a criminal trial, which is always uponEthe prosecution. It lays down the rule that when the accused doesnot throw any light upon facts which are specially within hisknowledge and which could not support any theory or hypothesiscompatible with his innocence, the court can consider his failureto adduce any explanation, as an additional link which completesthe chain. The principle has been succinctly stated in Naina Mohd.,FAIR 1960 Mad 218:1960 Crl LJ 620.”

32.3 In Arabindra Mukherjee Vs. State of West Bengal [(2011) 14 SCC 352], while dismissing the appeal by the convict whostood sentenced for offences punishable under Section 302, 364, 120Band 201 of IPC, this Court held: “once the appellant was last seen withGthe deceased, the onus is upon him to show that either he was not involvedin the occurrence at all or that he had left the deceased at her home orat any other reasonable place. To rebut the evidence of last seen and itsconsequence in law, the onus was upon the accused to lead evidence inorder to prove his innocence.”

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32.4 In Pattu Rajan Vs. State of Tamil Nadu [(2019) 4 SCC771] this Court held in paragraph 63 thus :-

“It is needless to observe that it has been established througha catena of judgment of this court that the doctrine of last seen, ifproved, shifts the burden of proof on to the accused, placing onhim the onus to explain how the incident occurred and whathappened to the victim who was last seen with him. Failure on thepart of the accused to furnish any explanation in this regard, as inthe case on hand, or furnishing false explanation would give riseto strong presumption against him, and in favour of his guilt, andwould provide an additional link in the chain of circumstances.”

(Emphasis supplied)

32.5 The various aspects relating to the ‘last seen theory’, derivedfrom the aforementioned decisions, are well-settled and hence, we donot think it necessary to burden this judgment with further authorities onthe subject.

33. A scanning of the circumstances and the evidence adduced inthe case on hand would reveal that conviction by the trial Court was notsolely based on “last seen theory”. Naturally, the confirmation of theconviction and sentence in the stated manner by the High Court is alsonot solely based on the “last seen theory”. Obviously, to establish thatthe deceased was lastly seen with the appellant the prosecution hadrelied on the oral testimonies of PWs 2 and 4. Before adverting to theirtestimonies it is only worthwhile to refer to the oral evidence of PW-3,the maternal grandmother of the deceased. As noted earlier, she deposedthat on the fateful day she was in the house of Raju along with thedeceased and at about 08:30 pm Raju sent the deceased to purchase bidiand thereafter she did not return home. PW-3 would also submit that thedeceased was then wearing an embroidered broad frock and a blue-coloured jeans. Her evidence was not seriously challenged. Now, wewill refer to the evidence of PWs 4 and 2. It is enroute to the shop thatthe deceased girl went past the house of PW-4 viz., Pappu @ Patiram.Both PW-4 and the appellant are rickshaw pullers. PW-4 would deposethat on 19.09.2014 himself, the appellant and one Mr. Rakesh were sittingin front of his house and were preparing to get intoxicated and he wasmaking the pegs. He would depose that earlier the appellant had givenhim Rs.50 as drink-money and further that upon seeing the deceased, A

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Athe appellant asked her where she was going and then followed herafter promising them that he would return. Evidently, a feeble attemptwas made to establish that PW-4 was entertaining animosity towardsthe appellant. Evidently, the suggestion was repudiated by him. Besides,putting the said suggestion nothing to shatter the credibility of PW-4 wasbrought out. Both the trial Court and the High Court found the testimonyBof PW-4 as uncontroverted and believable. When the evidence is to theeffect that in the evening of that fateful day the appellant, PW-4 andanother had gathered at the residence of PW-4, that too for intoxication,it can only be said that the suggestion of animosity was righty repelledby both the Courts.C34. Now, we will refer to the testimony of PW-2. He is the maternalgrandfather of the deceased. But, that by itself cannot be a reason todiscredit or to eschew his oral testimony. Both the trial Court and theHigh Court had analysed and appreciated the evidence of PW-2acknowledging the said position. Evidently, they found no reason toDdisbelieve PW-2. Upon scrutiny of his testimony, we also found thatdespite his thorough cross-examination on behalf of the appellant, nothingto discredit his version was brought out. He deposed to the effect thathe was sitting at the door of his house at Thakur Baba Road, Dabra andat about 8:00 to 8:30 in the night of the day of occurrence he had seenthe accused following the deceased. He would also depose to the effectEthat thereafter the deceased had not returned. There is not even asuggestion to the effect that his house is not near to the road and it wasnot possible to see someone passing from there. PW-2 further deposedthat the appellant is his nephew and that the deceased was his grand-daughter. He was one of the attesting witnesses to several prosecutionFdocuments including Ext.P2 Safina Form, Ext.P3 dead bodypanchayatnama, Ext.P4 arrest memo, Ext.P5 that carries the disclosurestatement of the appellant and Ext.P6 which is the dead body recoverymemo and its identification memo and in Court, he had testified all ofthem. He deposed to the effect that the body of the victim as also her dresses were recovered from the place of occurrence viz., bada of JaganGSindhi at the instance of the appellant. The contention of the appellant isthat since PW-2 being the grandfather of the deceased the prosecutionought to have examined independent witness to the mahazhars of seizuresand recoveries. As noticed earlier, despite thorough cross-examinationon behalf of the appellant nothing to discredit his evidence was elicited.HThere can be no two views that being related to the victim, by itself, is no reason at all to discredit the testimony of a witness. This position hasbeen made clear by this Court in various decisions.

35. In Dalip Singh and Ors. Vs. State of Punjab reported inAIR 1953 SC 364, wherein four persons appealed against sentencesof death imposed on them for conviction for a double murder, this Courtheld :- “A witness is normally to be considered independent unlesshe or she springs from sources which are likely to be tainted andthat usually means unless the witness has cause, such as enmityagainst the accused, to wish to implicate him falsely. Ordinarily, aclose relative would be the last to screen the real culprit and falselyimplicate and innocent person. It is true, when feelings run highand there is personal cause for enmity, that there is a tendency todrag in an innocent person against whom a witness has a grudgealong with the guilty, but foundation must be laid for such a criticismand the mere fact of relationship far from being a foundation isoften a sure guarantee of truth. However, we are not attemptingany sweeping generalization. Each case must be judged on itsown facts. Our observations are only made to combat what is sooften put forward in cases before us as a general rule of prudence.There is no such general rule. Each case must be limited to andbe governed by its own facts.”

35.1. In Khurshid Ahmed Vs. State of Jammu & Kashmir[(2018) 7 SCC 429], this Court while setting aside the order of acquittaland convicting the accused (the respondent therein) for charges underSection 302, 341 IPC, held that there could be no preposition in law thatrelatives ought to be treated as untruthful witnesses. On the contraryreason has to be shown when a plea of partiality is raised to show thatthe witness had reason to shield actual culprit and falsely implicate theaccused, it was further held. In this case there is an added reason.PW-2 is also equi-related to the appellant-convict. The accused is hisnephew. Therefore, the question is why should such a person who lostthe granddaughter implicate his nephew in the case. The suggestion thathe had a clash with the appellant was repudiated by him and still, noevidence to establish that suggestion was produced by the appellant. Asuggestion to a witness when repudiated can have no relevance at all inthe absence of any material produced, in accordance with law, to provethe factum suggested, certainly, subject to admissibility. Hence, the said A

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Asuggestion is impactless and inconsequential. Taking note of the natureof the contention raised against the testimony of PW-2, idest, that he isrelated to the deceased, it is apposite to refer to another aspect.Noticeably, the appellant has taken up a contention in respect of theseizure/recoveries, involved in this case, that non-examination of Sri.Ganesh, the father of the deceased, is fatal to the prosecution as heBbeing the other attesting witness to most of such documents. This wouldreveal the paradox and hollowness in the contentions of the appellantinasmuch as, he would contend that PW-2 being a relative of the deceasedanother independent witness ought to have been examined to prove theseizures and recovery and in the same breath he would raise contentionCagainst the non-examination of the father of the deceased to prove thesame. In this regard it is relevant to note the position of law that evidenceis only to be weighed and not to be counted and that it is essentially, forthe prosecution to decide as to how many witnesses are to be examinedto establish its case on any particular point. In this case the version ofPW-2 as relates the fact that the deceased was lastly seen with theDappellant would get support from the oral testimony of PW-4 Pappu @Patiram. The evidence of PW-4 and the fact that nothing was elicitedfrom PW-2 to discredit his version that the appellant was following thedeceased there was no reason to disbelieve PW-2 on that issue. In short,there is no reason to mistrust the said material witnesses on the pointEthat the deceased was lastly seen with the appellant as concurrentlyheld by the trial Court and the High Court.

36. The evidence of PW-12 was actually taken as res gestaeunder Section 6 of the Indian Evidence Act, 1872 by the High Court. InSukhar Vs. State of UP [(1999) 9 SCC 507] this court explained theFsaid provision. It was held therein that the statement sought to be admitted,as forming part of res gestae, must have been made contemporaneouslywith the acts. Thus, it is evident that the essence of the doctrine of resgestae is that a fact which, though not in issue, is so connected with thefact in issue “as to form part of the same transaction” that it becomesrelevant by itself. A conduct of the accused after the incident may becomeGadmissible under Section 6 of the Evidence Act, though not in issue, if itis so connected with the fact in issue.

37. The statement of PW-12 is to the effect that after finishing hiswork he was returning home during the night, at about 9 o’clock. Hewould depose that he saw the appellant then coming out of bada ofH

Jagan Sindhi and dusting his clothes. It is true that a suggestion was putto him, while being cross-examined, that he had not actually seen theappellant coming out of the bada and he was deposing otherwise due toanimosity with the appellant. Though PW-12 had repudiated the saidsuggestion, the appellant had not adduced any further evidence to establishthe same. A careful scanning of the evidence of PW-12 would revealthat he had categorically stated that he knew the appellant-accused andon the fateful day he had seen him coming out of the bada of JadanSindhi. Applying the doctrine the evidence of PW-12 that he had seenthe appellant at about 9:00 pm on the fateful day, coming out of the badaof Jagan Sindhi and dusting his clothes, is admissible under Section 6 ofthe Evidence Act. It was treated as another incriminating circumstanceagainst the appellant. There can be no doubt with regard to the positionthat he is an independent witness though he was described as a ‘chancewitness’. In this context it is relevant to refer to the decision in ChanakyaDhibar Vs. State of West Bengal (2004 (1) Crimes 196) whereasthis Court observed thus :- “In a murder trial by describing the independent witness as ‘chancewitness’ it cannot be implied thereby that their evidence issuspicious and their presence at the scene doubtful. Murders arenot committed with previous notice to witnesses; soliciting theirpresence. If murder is committed in a dwelling house, the inmatesof the house are natural witnesses. If murder is committed in astreet, only passerby will be witnesses. Their evidence cannot bebrushed aside or viewed with suspicion on the ground that theyare mere ‘chance witnesses’. The expression ‘chance witness’is borrowed from countries where every man’s home is consideredhis castle and everyone must have an explanation for his presenceelsewhere or in another man’s castle. It is quite unsuitable anexpression in a country where people are less formal and morecasual.”

We referred to the aforesaid decision to give emphasis on theaspect that description of a witness as ‘chance witness’ cannot and willnot by itself denude the admissibility or relevance of the evidence ofsuch a witness if nothing was brought out to make his version suspiciousand thereby unacceptable. It is to be noted that despite cross-examiningPW-12 on behalf of the appellant nothing to make his version suspiciousand untrustworthy was brought out. He deposed that he knew the A

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Aappellant and further that at about 9:00 pm he had seen him coming outof the bada in question and dusting his clothes.

38. The evidence of PW-6 (Jagdish @ Jagan) is to the effect thathe is the son of Laxmibai, the owner of the bada which is the occurrenceplace. According to him, the said property was purchased by his motherBand its eastern and western boundaries are respectively Thakurdas BabaRoad and Dhan mill. He would further depose thus :- “On the aforesaid plot, four rooms were already constructed.Presently, the aforesaid rooms and the plot are not in use. Presently,the plot is in the shape of a Bada (verandah), whose boundary isCbroken. The rooms are in dilapidated condition.” According tohim, at that place, miscellany (empty sacks) of the mills havebeen kept and the fallen clay wall of the Bada gives easy accessto the Bada, and it is not worthy for use. The evidence of PW-6on the aforesaid aspects remains unchallenged. It is to be notedthat it is from such a place, which is in a dilapidated and unusableDcondition, that the appellant was seen coming out during the nightby PW-12. Moreover, the corpse of the victim was recoveredfrom there the very next day, based on Ext.P5 disclosure statementof the appellant and at his instance.

39. It was on 20.09.2014 at about 04:00 pm that the appellant wasEarrested. Ext.P4 is his arrest memo. While in custody he gave Ext.P5-disclosure statement regarding the concealment of the dead body of thedeceased as also her dresses. The factum of the appellant having madesuch a disclosure statement as also their subsequent recovery is provedthrough PW-2. PW-19 deposed that he had recorded Ext.P5 memo.FPW-16 Jitendra Nagaich, the then Station House Officer, Police Station,Dabra, deposed to the effect that along with the appellant they proceededto the place of occurrence, as shown by the appellant and from there thedead body of the victim, concealed beneath the gunny bags, wasrecovered at the instance of the appellant. They would also depose thatthe body was seen in disrobed condition. The dresses of the deceasedGwere recovered from the place of occurrence itself. The oral evidenceof PW2 and PW16 that the corpse of the deceased girl and her dresseswere recovered from the said place of occurrence, at the instance ofthe appellant, gained corroboration from the oral testimonies of PW-5Mr. Sonish Vasistha, a journalist and PW-11 Mr. Deepak Shukla, whoHwas the then Tehsildar and Executive Magistrate of the locality.

40. In the decision in Govindaraju @ Govinda Vs. State [(2012)4 SCC 722] this Court held that there would be nothing wrong in relyingon the testimony of police officers if their evidence is reliable, trustworthy,cogent and duly corroborated by other witnesses or admissible evidence.In the light of the fact that nothing was brought out to discredit thetestimonies of PW-16 and PW-19 and their oral testimonies gainedcorroboration from the testimonies from PWs 2, 5 and 11 it can only beheld that the aforesaid aspects were rightly appreciated by the Courtsbelow and taken as circumstances against the appellant.

41. The recovery of the dead body, which was in a concealedcondition from an unused and dilapidated building based on the disclosurestatement of an accused is a crucial incriminating circumstance. In thedecision in Jaharlal Das Vs. State of Orissa [AIR 1991 SC 1388],this Court held therein that the discovery of the body at the instance ofthe accused is a crucial circumstance, in a case resting on circumstantialevidence. This position was iterated in Mohd. Mannan @ AbdulMannan Vs. State of Bihar [(2011) 5 SCC 317].

42. Now, we will advert to the other incriminating circumstancestaken into consideration by the High Court to confirm the conviction ofthe appellant for the stated offences.

43. The impugned judgment would reveal that the High Court hadinterfered with the conviction of the appellant under Section 376A IPC.Among other things, it also evident that on reappreciation of the evidencethe High Court disagreed with and reversed the finding of the trial Courtin regard to the admissibility and evidentiary value of the recovery of anunderwear (Article F-described as shaddy) from the occurrence placeand also its result on analysis. Nonetheless, the High Court went on toconsider the question whether the rest of the circumstantial evidenceand the supporting materials would unerringly point to the guilt of theappellant alone. The said approach cannot be said to be wrongful orillegal and in fact, it is the rightful approach in view of the fact that theconviction of the appellant was based on various circumstantial evidences,in the light of the decision of this court in State of West Bengal Vs.Dipak Haldar & Anr. [(2009) 7 SCC 288]. Evidently, the High Courthad considered the cumulative effect of the rest of the circumstantialevidences and materials supporting them. In Dipak Haldar’s case thiscourt held thus:- A

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A“17. In a case based on circumstantial evidence, the court isrequired to consider whether the cumulative effect of all thecircumstances leads to a conclusion that the same was a case ofmurder and the accused was responsible for such murder. Aconviction can be based on circumstantial evidence if it is of sucha character that the same is wholly inconsistent with the innocenceBof the accused and is consistent only with his guilt. Theincriminating circumstances that are being used against theaccused must be such as to lead only to a hypothesis to reasonablyexclude every possibility of his innocence.

18. To put it differently, the court should find out whether theCcrime was committed by the accused and the circumstancesproved formed themselves into a complete chain, which clearlypoints to the guilt of the accused. If on the other hand, thecircumstances proved against the accused are consistent eitherwith the innocence of the accused or raise a reasonable doubtDabout the way the prosecution has alleged the offence is committed,the accused would be entitled to the benefit of doubt.”

We are of the considered view that a different approach in re-appreciating the evidence would have defeated dispensation of justice,Eas in cases based on circumstantial evidence also it is not the quantity ofthe evidence that counts, but it is its quality. In other words, the questionis only whether a complete chain of circumstantial evidence of such acharacter that the same is wholly inconsistent with the innocence of theaccused and is consistent only with his guilt, is available.F

44. PW.16-Shri. Jitendra Nagaich proved Ext.P-8 Seizure memoby which a pants and a shirt were recovered from the residence of theAppellant. PW-2 also deposed to the same effect and he testified histhumb impression in Ext.P-8 Seizure memo. In Ext.P-21 FSL Reporthuman blood was found on the said pants (article-C). True that theGserological part of Ext.P-21 report did not indicate the group of the bloodstains found in the pants. This aspect was highlighted by the appellantbefore the High Court as also before us to contend that in view of thefailure of the prosecution to establish that the blood stains found thereonbelonged to the deceased it could not in anyway connect him with thecrime and hence, could not have been taken as an incriminating H

circumstance against him. At the first blush this contention would appearto be attractive and acceptable. However, as per the impugned judgementthe High Court had rightly repelled the said contention by relying on thedecision of this court in Kansa Behera Vs. State of Orrisa (AIR1987 SC 1507). In the said decision this Court exposited that whenconviction is to be recorded solely on the basis of presence of bloodstains in any article(s) seized from the accused concerned the prosecutionhas to prove beyond doubt that the blood found on that article(s) is thatof the deceased and for that the group of the blood found on the seizedarticle(s) should match with that of the deceased upon their grouping. Atthe same time, it was further held therein that when other circumstancesare available non-detection of blood group by itself would not be fatal.The decision of this Court in R. Shaji Vs. State of Kerala [(2013) 14SCC 266] also assumes relevance in this context. This court held thus:- “30. It has been argued by the learned counsel for the appellantthat as the blood group of the blood stains found on the choppercould not be ascertained, the recovery of the said chopper cannotbe relied upon.

31. A failure by the serologist to detect the origin of the blood dueto disintegration of the serum does not mean that the blood stuckon the axe could not have been human blood at all. Sometimes itis possible, either because the stain is insufficient in itself, or dueto haematological changes and plasmatic coagulation, that aserologist may fail to detect the origin of the blood in question.However, in such a case, unless the doubt is of a reasonabledimension, which a judicially conscientious mind may entertainwith some objectivity, no benefit can be claimed by the accused inthis regard. Once the recovery is made in pursuance of a disclosurestatement made by the accused, the matching or non-matching ofblood group(s) loses significance. (Vide Prabhu Babaji Navle v.State of Bombay, Raghav Prapanna Tripathi v. State of U.P.,State of Rajasthan v. Teja Ram, Gura Singh v. State ofRajasthan, John Pandian v. State and Sunil Clifford Danielv. State of Punjab.)

32. In view of the above, the Court finds that it is not possible toaccept the submission that in the absence of a report regardingthe origin of the blood, the accused cannot be convicted, for it isonly because of the lapse of time that the blood could not be A

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The evidence on record in the case on hand would reveal thatconviction of the appellant herein was not based solely on a presumptivefinding that the blood stains present in the pants (Article-C) seized fromthe residence of the appellant is that of the deceased. At the same time,Cit is a fact that it was taken as one of the incriminating circumstances. Itis not the case of the appellant that the said pants was not the onerecovered from his residence. In fact, under Ext.P8 it was recoveredfrom his residence and that fact was proved through PWs 2 and 16.Ext.P21 would reveal that upon analysis the blood stains stuck thereonwere ascertained to be of human origin. In the light of Shaji’s decisionD(supra) once the blood stains were ascertained as that of human originthe mere non-detection of blood group would be of no consequence.Despite the difference in factual situation the exposition of law that onaccount of mere non-detection of blood group no advantage could beconferred upon the accused to enable him to claim any benefit in suchEsituation. Certainly, in such circumstances a case of missing link in thechain of circumstances could not be claimed on that sole score and atthe same time, absence/failure of explanation from the appellant whenthe said incriminating circumstance was put to him during his examinationunder Section 313 Cr.P.C. would work out against him.

FIn these circumstances, the Courts below cannot be found in faultin taking it as an incriminating circumstance against the appellant.

45. As noted earlier, another incriminating circumstance consideredagainst the appellant is the presence of nail marks on his face and neckand also his failure to offer explanation therefor. In this regard the evidenceGof PW-17 (Dr. Harish Arya) with Ext.P24-MLC was relied on. PW-17was the doctor who examined the appellant when he was produced formedical examination after his arrest. He found the following four nailscratches on the body of the appellant: -

1. 1.5 cm x .02 mm on the left side neck near angle of left jaw.

H2. 1 cm x 2 mm on left side of neck in front of injury no. 1.

3. 0.5 cm x 2 mm on left cheek.

4. 0.5 cm x 2 mm over angle of left jaw.

46. As per PW-17 those injuries were found on him on 21.09.2014at about 1:00 pm and those injuries were caused within 48 hours beforehis examination. When this incriminating circumstance was put to theappellant during his examination under Section 313 Cr.P.C., he did notoffer any explanation as to how such injuries were caused. Obviously,the trial Court found that the appellant sustained such injuries in theincident in question that occurred on 19.09.2014 at about 09:00 pm, aftertaking into account the evidence of PW-17 with Ext.P24 and in theabsence of explanation from the appellant as to how those injuries havebeen caused. The High Court did not disturb the said conclusion. Wefind no illegality or infirmity on such conclusion and finding.

47. We have already observed that since the High Court hadinterfered with the conviction of the appellant under Section 376A IPCthe question whether the rest of the incriminating circumstances formeda complete chain leading solely to the guilt of only appellant in exclusionof all hypothesis in favor of his innocence, as held by the High Court.We have already considered in detail all the incriminating circumstancesand materials available to support them that weighed with the High Court.It is absolutely unnecessary to refer to each of them again. Suffice it tosay that they would go to show that despite what are eschewed acontinuous and complete chain of circumstances and materials supportingthem, is available and they are wholly inconsistent with the innocence ofthe appellant and consistent only with his guilt. Above all, it is evidentthat an additional link is available in this case owing to the failure on thepart of the appellant to explain all the aforesaid incriminatingcircumstances. While being examined under Section 318, Cr.P.C. inrespect of all questions his answers were either ‘it is false’ or ‘I do notknow’. There is absolutely no case for the appellant that all theincriminating circumstances were not put to him. In view of Pattu Rajan’scase (supra) and other decisions such as, Trimukh Maroti KirkanVs. State of Maharashtra (2006 AIR SCW 5300) offering noexplanation on incriminating circumstances mentioned above wouldbecome an additional link in the chain of circumstances. The cumulativeeffect of all the aforesaid circumstances, referred to in detailhereinbefore, would definitely justify the finding of the High Court as tothe guilt of the appellant.

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A48. The trial Court and also the High Court had concurrentlyconcluded that the death of the victim is homicidal in nature. We havefound, based on the evidence on record, that the Courts have rightlyfound that the victim was raped. The diabolic and gruesome manner inwhich the appellant had ravished the hapless girl is evident from thegrave injuries on her pudenda. There occurred perennial tear of gradeBfourth extending up to anus and that her uterus was torn and was comingout from the vagina. As noticed above, the vaginal swab on examinationrevealed the presence of blood and semen. Hence, the finding that thedeceased was subjected to rape warrants no interference.

49. Though the appellant had disputed the age of the deceasedCbefore the trial Court, the impugned judgment would reveal that the saidcontention was given up at the appellate stage. When that be so, theappellant could not now be permitted to dispute the age of the deceasedat the time of occurrence in these appeals. Even otherwise, the evidenceon record would reveal that PWs 1 to 3, who are respectively the mother,Dthe maternal grandfather and the maternal grandmother of the victim,had deposed that the deceased was aged 7-8 years. PW-1 would furtherdepose that the deceased was studying in Class-I in the Govt. Schoolsituated near Laddaram. PW-10 who along with the Dr. Asha Singhperformed autopsy on the body of the victim and prepared Ext.P17 reportnoted therein that the deceased appeared to be of 8 years old and he hadEalso deposed to that effect while being examined before the Court. Thatapart, PW-9 who was the Headmistress-in-charge in Govt. Primary BoysSchool, Jawaharganj, brought and proved Ext.P14 - School AdmissionApplication of the deceased, Ext.P15 - Admission Register and the copyof which was marked as Ext.P15C and also and also Ext.P16 which isFher age verification Certificate issued from the school. They woulddisclose her Admission Number as 1937 and the date of birth as10.09.2006. Her evidence was not seriously challenged by the appellantduring the cross-examination. At any rate, no contra-evidence wasadduced in this regard by the appellant. Taking into account the natureof the commission of rape revealed from the evidence on record andGdiscussed hereinbefore the concurrent finding of the courts below thatthe appellant has committed the offence of aggravated penetrative sexualassault punishable under Section 6 of the POCSO Act also invites nointerference.

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50. The question, now to be considered is whether the homicidaldeath of the victim amounts to murder or whether it falls either underSection 304(1) or 304(2) as contended by the appellant. The impugnedjudgment would reveal that the High Court concurred with the finding ofthe trial Court that the homicidal death of the victim amounts to murder.The right approach in cases of culpable homicide is to first find outwhether the offence falls under any of the four clauses viz., clausesfirstly to fourthly under Section 300 IPC. If it is so found, then the Courthas to see whether the case is covered by any one of the five exceptionsto section 300 IPC, which would make a culpable homicide ‘not amountingto murder’. The offence, if proved, to fall under one of the said exceptionswould be punishable under Section 304, either under Part 1 or Part 2 asthe case may be, or otherwise it would be murder punishable underSection 302 IPC. In the case on hand both the trial Court and the HighCourt, had analysed evidence on record and found that the appellant hadpressed the neck of the victim so hard unmindful of the fact that shewas aged only 8 years and caused internal hemorrhage. The cause ofdeath was asphyxia due to throttling. The nature of the injuries found onthe neck of the deceased would reveal the pressure exerted by theappellant on the neck. The fact that the victim was a hapless girl agedonly 8 years has to be taken into account while considering the question.Intention is a subjective element and every sane person must be presumedto intend the result that his action normally produces. Hence, constrictionof the neck of a girl child aged about 8 years by fingers or palm by ayoung man aged 25 years, with such force to cause the injuries mentionedhereinbefore cannot be said to be sans intention to take her life. If thesaid act was subsequent to commission of rape in the diabolic andgruesome manner revealed from the grave injuries sustained on her privateparts, causing death alone can be inferred from the circumstances. Ifthe act of constricting the neck with such force resulting in the statedinjuries preceded the offence of rape, then, the manner by which shewas ravished should be taken only as an act done knowingly that it is soimminently dangerous that it must in all probability cause death or suchbodily injury as is likely to cause death. Thus, viewing in any angle thehomicidal death would fall either Clause 1 or Clause 4 of Section 300IPC. A feeble attempt was made by the appellant to contend that theCourts had erred in finding the appellant guilty under Section 300 IPC,punishable under 302 IPC and that if at all he has to be convicted forcausing death of the victim it ought to have been under Section 304 IPC.

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AIt is to be noted, once it is found that the act falls under any one of the 4clauses under Section 300 IPC, to bring it out of its purview it must beproved that it falls under any one of the five exceptions to Section 300IPC. There is nothing on record and no contention was also raised bythe appellant, with support of material, to show that any one of the saidfive exceptions attracts in this case. In fact, the only contention urgedBand also taken in the written submission by the appellant is that thedeceased had died due to an injury on her neck which had occurredquite naturally during the commission of the rape. We have no hesitationto hold that the said contention is palpably untenable and at any rate, notat all sufficient to bring the offence under any one of the five exceptionsCto Section 300 IPC. The long and short of the discussion is there is noreason to interfere with the finding of the Trial Court, which was confirmedby the High Court, that the appellant is guilty of committing murderpunishable under Section 302 IPC. Thus, on a careful examination ofthe matter in its entirety, we do not find any perversity or manifest illegalitywith respect to the concurrent finding of the trial Court and the HighDCourt that the appellant herein had committed offences punishable underSection 302 IPC, 376(2)(i) IPC and Section 6 of the POCSO Act.

51. As noticed hereinbefore, upon conviction for each of the offenceunder Section 376(2)(i) IPC and under Section 6 POCSO Act, theappellant was sentenced to undergo rigorous imprisonment for life andEto pay a fine of Rs.2000/- and in default of payment of fine to undergoimprisonment of one year. No extenuating circumstances warranting aninterference with the sentence thus imposed by the trial Court, whichwas confirmed by the High Court, for the conviction for the statedoffences were brought to our attention by the appellant.F

52. The next question is whether death sentence awarded by thetrial Court and confirmed by the High Court for the conviction of theoffence of murder be maintained or substituted? This penalty is awardableto a culprit only the category of the case falls under ‘rarest of rarecases’, the culprit has become a threat to the society at large and beyondGreformation and his elimination is the only way for eradication of thethreat. For deciding the said question various aspects have to beconsidered. On a careful scanning of the consideration made by the trialCourt as also the High Court for awarding the sentence for the convictionunder Section 300 IPC, punishable under section 302 IPC, we are of theview that the question regarding the correctness of the death sentenceH

awarded to the appellant requires further consideration, taking into accountthe statutory requirements under Section 354(3) Cr.P.C. For awardingtermination of natural life, a careful scrutiny is required. The statutoryrequirements under Section 354(3) Cr.P.C. are as under :

“When the conviction for an offence punishable with death or, inthe alternative, with imprisonment for life or imprisonment for aterm of years, the judgment shall state the reasons for the sentenceawarded, and, in the case of sentence of death, the special reasonsfor such offence.”

53. On the aforesaid subject this Court has already enunciatedthe principles. A careful survey of such decisions was made by this verythree-Judge Bench in the decision in Pappu Vs. The State of UttarPradesh (Criminal Appeal Nos.1097-1098/2018, pronounced on 9.2.2022.Paragraph 49 of the decision in Shankar Kishanrao Khade Vs. Stateof Maharashtra reported in (2013) 5 SCC 546, highlighting therequirement of application of ‘crime test’, ‘criminal test’ and ‘rarest ofrate test’ was referred therein. In the said paragraph, with reference tothe previous decisions, the aggravating circumstances (crime test) andthe mitigating circumstances (criminal test) were narrated as hereunder:

“49. In Bachan Singh and Machhi Singh cases, this Court laiddown various principles for awarding sentence: (RajendraPralhadrao case, SCC pp. 47-48, para 33)

“‘Aggravating circumstances — (Crime test)

(1) The offences relating to the commission of heinous crimeslike murder, rape, armed dacoity, kidnapping, etc. by the accusedwith a prior record of conviction for capital felony or offencescommitted by the person having a substantial history of seriousassaults and criminal convictions.

(2) The offence was committed while the offender was engagedin the commission of another serious offence.

(3) The offence was committed with the intention to create a fearpsychosis in the public at large and was committed in a publicplace by a weapon or device which clearly could be hazardous tothe life of more than one person.

(4) The offence of murder was committed for ransom or likeoffences to receive money or monetary benefits.

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A(5) Hired killings.

(6) The offence was committed outrageously for want only whileinvolving inhumane treatment and torture to the victim.

(7) The offence was committed by a person while in lawfulcustody.

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(8) The murder or the offence was committed to prevent a personlawfully carrying out his duty like arrest or custody in a place oflawful confinement of himself or another. For instance, 90 murderis of a person who had acted in lawful discharge of his duty underSection 43 of the Code of Criminal Procedure.C

(9) When the crime is enormous in proportion like making anattempt of murder of the entire family or members of a particularcommunity.

(10) When the victim is innocent, helpless or a person relies uponDthe trust of relationship and social norms, like a child, helplesswoman, a daughter or a niece staying with a father/uncle and isinflicted with the crime by such a trusted person.

(11) When murder is committed for a motive which evidencestotal depravity and meanness.

(12) When there is a cold-blooded murder without provocation.

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(13) The crime is committed so brutally that it pricks or shocksnot only the judicial conscience but even the conscience of thesociety.

Mitigating circumstances — (Criminal test)F

(1) The manner and circumstances in and under which the offencewas committed, for example, extreme mental or emotionaldisturbance or extreme provocation in contradistinction to all thesesituations in normal course.

G(2) The age of the accused is a relevant consideration but not adeterminative factor by itself.

(3) The chances of the accused of not indulging in commission ofthe crime again and the probability of the accused being reformedand rehabilitated.

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(4) The condition of the accused shows that he was mentallydefective and the defect impaired his capacity to appreciate thecircumstances of his criminal conduct.

(5) The circumstances which, in normal course of life, would rendersuch a behaviour possible and could have the effect of giving riseto mental imbalance in that given situation like persistentharassment or, in fact, leading to such a peak of human behaviourthat, in the facts and circumstances of the case, the accusedbelieved that he was morally justified in committing the offence.

(6) Where the court upon proper appreciation of evidence is ofthe view that the crime was not committed in a preordained mannerand that the death resulted in the course of commission of anothercrime and that there was a possibility of it being construed asconsequences to the commission of the primary crime.

(7) Where it is absolutely unsafe to rely upon the testimony of asole eyewitness though the prosecution has brought home the guiltof the accused.’”

This Court further said: -

“52. Aggravating circumstances as pointed out above, of course,are not exhaustive so also the mitigating circumstances. In myconsidered view, the tests that we have to apply, while awardingdeath sentence are “crime test”, “criminal test” and the “R-Rtest” and not the “balancing test”. To award death sentence, the“crime test” has to be fully satisfied, that is, 100% and “criminaltest” 0%, that is, no mitigating circumstance favouring the accused.If there is any circumstance favouring the accused, like lack ofintention to commit the crime, possibility of reformation, youngage of the accused, not a menace to the society, no previous trackrecord, etc. the “criminal test” may favour the accused to avoidthe capital punishment. Even if both the tests are satisfied, that is,the aggravating circumstances to the fullest extent and no mitigatingcircumstances favouring the accused, still we have to apply finallythe rarest of the rare case test (R-R test). R-R test depends uponthe perception of the society that is “society-centric” and not“Judge-centric”, that is, whether the society will approve theawarding of death sentence to certain types of crimes or not.While applying that test, the court has to look into variety of factors AB

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Alike society’s abhorrence, extreme indignation and antipathy tocertain types of crimes like sexual assault and murder ofintellectually challenged minor girls, suffering from physicaldisability, old and infirm women with those disabilities, etc.Examples are only illustrative and not exhaustive. The courts awarddeath sentence since situation demands so, due to constitutionalBcompulsion, reflected by the will of the people and not the will ofthe Judges.”

54. After taking into account the same and such other decisionsspecifically referred to therein, in Pappu’s case (supra) it was held thus:- C“41. It could readily be seen that while this Court has found itjustified to have capital punishment on the statute to serve asdeterrent as also in due response to the society’s call forappropriate punishment in appropriate cases but at the same time,the principles of penology have evolved to balance the otherobligations of the society, i.e., of preserving the human life, be itDof accused, unless termination thereof is inevitable and is to servethe other societal causes and collective conscience of society.This has led to the evolution of ‘rarest of rare test’ and then, itsappropriate operation with reference to ‘crime test’ and ‘criminaltest’. The delicate balance expected of the judicial process hasEalso led to another mid-way approach, in curtailing the rights ofremission or premature release while awarding imprisonment forlife, particularly when dealing with crimes of heinous nature likethe present one.”

55. On going through the judgment of the trial Court and the HighFCourt, we are of the considered view that in handing down capitalsentence what had weighed with the Courts are the horrendous featureof commission of crime and the hapless state of the victim. The trialCourt considered the question of sentence and awarded the same on thevery same day on which the appellant was convicted. We shall not beunderstood to have held that this is absolutely illegal and impermissible.GUltimately, what is required is consideration of the aggravating andmitigating circumstances with application of mind. They were not giventhe proper attention while considering the question of awarding thesentence for conviction under Section 302 IPC, in the case on hand. Inthe said circumstances, we will proceed to consider the question ofHsentence in the present case bearing in mind the principles enunciated by this Court in the matter of awarding the capital sentence. The trialCourt as also the High Court arrived at the conclusion that the act of theappellant herein invited the extreme indignation of the community andtherefore, it deserves a deterrent sentence so as to give a message tothe society that such crimes should not be repeated by anyone. In short,we are of the considered view that the ‘crime test’ and the ‘criminaltest’ require to be followed before awarding capital sentence, did notgather the required attention of the trial Court as also the High Court.

56. It is true that all murders are inhuman. For imposing capitalsentence, the crime must be uncommon in nature where even after takinginto account the mitigating circumstances the Court must be of the opinionthat the sentence of imprisonment for life is inadequate and there is noalternative but to impose death sentence. The heinous and brutal natureof the commission of crime, viz., brutal rape and murder of an eight-yearold girl child who is none other than the daughter of his own cousin, thattoo in a hapless situation, is definitely an aggravating circumstance. Thenature of the injuries caused on the private parts of the victim as isevident from the evidence of PW10 with Ext.P17 report would definitelyshock the conscience. At the same time, the principles enunciated bythis Court in the matter of awarding of death sentence and in suchcircumstances, the undisputed and indisputable fact that the appellanthad no criminal antecedents and he hails from a poor socio-economicbackground and also his unblemished conduct inside the jail cannot gounnoticed. So also, it is a fact that at the time of commission of theoffence the appellant was aged 25 years. Hence, viewing the issue takinginto account the aforesaid aspects, we do not find any reason to rule outthe possibility and the probability of the reformation and rehabilitation ofthe appellant. The long and short of the discussion is that the presentcase cannot be considered as one falling in the category of ‘rarest ofrare cases’ in which there is no alternative but to impose death sentence.

57. In the aforesaid circumstances, the next question is what isthe comeuppance for the conviction for offence of murder in this case.In the decision in Swamy Shraddananda Vs. State of Karnataka[(2008) 13 SCC 767], taking into account the tenets of penology andwith a view to have a just, reasonable and proper course in a case wherethe Court is of the opinion that sentence for life is inadequate but impositionof death sentence is unwarranted this Court adopted the course ofawarding life imprisonment without application of the provisions of AB

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Apremature release/remission before an actual imprisonment for a definiteperiod of time. This position was iterated with agreement in the decisionin Union of India Vs. Sriharan [(2016) 7 SCC 1], thus :

“We hold that the ratio laid down in Swamy Shraddananda(supra) that a special category of sentence; instead of death canBbe substituted by the punishment of imprisonment for life or fora term exceeding 14 years and put that category beyond applicationof remission is well-founded and we answer the said question inthe affirmative.

58. Thus, taking into account the fact that in the case on hand aChapless 8 year old girl child, who is none other than the daughter ofappellant’s cousin sister raped and murdered and that too, in an extremelybrutal manner revealed from the evidence on record, we are of theconsidered view that course adopted in the decision in SwamyShraddananda’s case (supra) and reiterated in Sriharan’s case (supra)has to be adopted in this case. In other words, even while commutingDcapital punishment, the appellant has to be awarded life imprisonmentwithout application of the provisions of premature release/remission fora substantial length of period. On such consideration we are of the viewthat it would be just and proper to award punishment of imprisonmentfor life to the appellant for the offence punishable under Section 302EIPC, by providing for an actual imprisonment for a period of 30 (thirty)years without application of the provisions of premature release/remission.59. In the circumstances, these appeals are partly allowed ashereunder:

(i) The conviction of the appellant for the offences punishableFunder Section 302 and 376(2)(i), IPC and conviction for theoffence punishable under Section 6 of POCSO Act is upheldand the sentences awarded to him for the conviction therefor,are confirmed, for the offence under Section 302 IPC;

(ii) However, the death sentence awarded to the appellant forGthe offence under Section 300, IPC punishable under Section302, IPC is commuted to that of imprisonment for life withthe stipulation that he shall not be entitled to premature releaseor remission before undergoing actual imprisonment for aperiod of thirty (30) years; H

VEERENDRA v. STATE OF MADHYA PRADESH[C. T. RAVIKUMAR, J.]

(iii) The other terms of sentences awarded to the appellant includingfine amount and default stipulations also stand confirmed. Allthe substantive sentences awarded to the appellant shall runconcurrently.

Ankit Gyan

Appeal partly allowed.

(Assisted by : Rahul Rathi, LCRA)

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