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Ajju @ Ajay vs The State Of Madhya Pradesh on 19 May, 2017

(1)
Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

HIGH COURT OF MADHYA PRADESH AT JABALPUR

Division Bench (1)Hon’ble Shri Justice J.K. Maheshwari
(2)Hon’ble Shri Justice Rajendra Mahajan

CRIMINAL REFERENCE No. 1/2014

In Reference received from
the Additional Sessions
Judge, Pipariya, District
Hoshangabad M.P. under
Section 366 of the Cr.P.C.
for confirmation of death
sentence.

VERSUS

1. Ashok S/o Bhairo Singh Purviya
Patel, aged 29 years, R/o
Village Bhatti, P.S. Pipariya,
District Hoshangabad (M.P.)

2. Ramjeevan S/o, Suraj Prasad
Kaurav, aged 29 years, R/o
Village Bharpura, District Bhind,
at present R/o Village Gardha,
P.S. Gadarwara, District
Narsinghpur (M.P.)

3. Kapil, S/o Chandan Singh
Purviya, aged about 27
years, R/o Mahua, Ajneri,
P.S. Pipariya, District
Hoshangabad (M.P.)

4. Ajju alias Ajay, S/o
Narsinghdas Bairagi, aged 27
years, R/o Village Ulghan,
P.S. Paloha Bada, District
Narsinghpur (M.P.), at present
R/o Radha Kishan Ward,
Pipariya, District
Hoshangabad (M.P.)
accused persons
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Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

CRIMINAL APPEAL NO.3538/2014

Ashok S/o Bhairo Singh Purviya

Accused-Appellant
with

CRIMINAL APPEAL NO.1075/2015

Ramjeevan S/o Suraj Prasad
Kaurav

Accused-Appellant
with

CRIMINAL APPEAL NO.3512/2014

Kapil S/o Chandan Singh
Purviya

Accused-Appellant
with

CRIMINAL APPEAL NO.3598/2014

Ajju alias Ajay S/o
Narsinghdas Bairagi

Accused-Appellant

Versus

State of M.P. through P.S.
Pipariya, District
Hoshangabad (M.P.)
Respondent
………………………………………………………………………….
For Prosecution : Smt. Divya Kirti Bohrey, learned
Government Advocate assisted by
Smt. Manjeet Chakkal, learned Panel
Lawyer.
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Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

For accused-appellant : Shri S.K. Gangrade, learned counsel.
Ashok
For accused-appellant : Shri P.S. Gaharwar, learned counsel.
Ramjeevan
For accused-appellant : Shri Krishna Dev Singh, learned
Kapil counsel.
For accused-appellant : Shri Amit Dubey and Shri Abhinav
Ajju @ Ajay Dubey, learned counsel.
………………………………………………………………………….

J U D G M E N T

(Pronounced on the 19 t h day of May, 2017)

As per Rajendra Mahajan, J.

Since the aforesaid criminal reference and criminal

appeals have arisen out of one and the same judgment dated

14.11.14 passed by the learned Additional Sessions Judge,

Pipariya, District Hoshangabad in Sessions Trial No.200/10,

they are being decided by this common judgment.

2. Vide the impugned judgment, the learned ASJ has held

that the period between 13.02.10 at about mid-noon and

15.02.10 at about 5:00 p.m. in the agricultural field of Durjan

Singh (PW-14) situated nearby village Samnapur the accused-

appellants committed gang-rape upon the deceased-

prosecutrix, and later murdered her and her companion

deceased Deepak in furtherance of common intention to

conceal the evidence of gang-rape. Having held so, the

learned ASJ has convicted and sentenced the accused-
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Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

appellants as under:-

Sr. Name of
Penal sections of Fine Default jail
No. accused- Jail sentences
Conviction sentences sentences
appellants
Imprisonment
(i) 376(2)(g) IPC Rs.1000/- R.I. for six months
for life

(ii) 302 r.w. 34 IPC Death sentence Rs.1000/- for For each count
1 Ashok
(two counts) for each count each count R.I. for six months
R.I. for seven

(iii) 201 IPC Rs.1000/- R.I. for six months
years
Imprisonment

(i) 376(2)(g) IPC Rs.1000/- R.I. for six months
for life

(ii) 302 r.w. 34 IPC Death sentence Rs.1000/- for For each count
2 Ramjeevan
(two counts) for each count each count R.I. for six months
R.I. for seven

(iii) 201 IPC Rs.1000/- R.I. for six months
years
Imprisonment

(i) 376(2)(g) IPC Rs.1000/- R.I. for six months
for life

(ii) 302 r.w. 34 IPC Death sentence Rs.1000/- for For each count
3 Kapil
(two counts) for each count each count R.I. for six months
R.I. for seven

(iii) 201 IPC Rs.1000/- R.I. for six months
years
Imprisonment

(i) 376(2)(g) IPC Rs.1000/- R.I. for six months
for life

(ii) 302 r.w. 34 IPC Death sentence Rs.1000/- for For each count
4 Ajju @ Ajay
(two counts) for each count each count R.I. for six months
R.I. for seven

(iii) 201 IPC Rs.1000/- R.I. for six months
years

3. The learned Trial Judge has sent the proceedings for

confirmation of sentences of death awarded to the accused-

appellants in order to comply with the provisions of Section

366 of the Cr.P.C., whereas being aggrieved by and

dissatisfied with the impugned judgment, each of the

accused-appellants has preferred a separate appeal under

Section 374 Cr.P.C.

4. The prosecution case as unfolded during the trial is

narrated below in detail as it is entirely based upon the
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Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

circumstantial evidence:-

(4.1) On 15.02.10, Rambagas (PW-21), the Kotwar of

village Samnapur, gave an oral intimation at the

Police Station Pipariya that two unknown dead

bodies of young persons, one male and one

female, in semi-naked state are lying in the

agricultural field owned Durjan Singh (PW-14),

the resident of village Samnapur, among the

standing wheat-crop. The dead body of man is

identified as that of Deepak s/o Babulal

Kushwaha a resident of village Kalmesera of

Hoshangabad district and the dead body of the

woman is not identified. Upon the aforesaid

intimation, Sub Inspector Rai Singh Soni (not-

examined–due to his death in a vehicular

accident before recording of his statement in the

trial court.) recorded marg intimation Ex.P-19 at

Nos.12/10 and 13/10 under Section 174 Cr.P.C.

(4.2) In the morning of 16.02.10, Rai Singh Soni

reached the place of occurrence. First he

prepared a spot map Ex.P-33 of the place where

the dead bodies were lying in the presence of

Laxman singh (PW-28). Thereafter, he prepared
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the inquest proceedings Ex.P-20 and Ex.P-34 of

dead bodies of Depak and unknown woman

respectively in the presence of witnesses

namely Dinesh (PW-22), Laxman Singh (PW-28),

Ram Singh (PW-30), Rambagas (PW-21) and

Narayan Prasad (PW-51). The witnesses opined

that both the deceased were murdered and the

woman was subjected to rape before being

murdered. He also prepared Panchnamas Ex.P-22

to Ex.P-25, showing the signs of scuffles, in the

presence of Laxman Singh and Rambagas. Vide

seizure memo Ex.P-26, he seized the deceased

woman’s clothes namely underwear, Salwar,

Dupatta (Stole) and Kurti which were in torn

condition and upon which stains of blood and

semen were present, as also a bunch of hair,

some pieces of ears of wheat (Gehu Ki Bali) and

soil smeared with her vaginal swab. He also

noticed that a stump of ears of wheat was partly

inside her vagina. Be it noted that he had also

recorded his said observations in the aforesaid

seizure memo. Vide seizure memo Ex.P-27, he

seized deceased Deepak’s torn jeans and a belt
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as also blood stained soil and plain soil. Vide

seizure memo Ex.P-28, he seized a gent’s

chappal of right foot and a purse. Vide seizure

memo Ex.P-29, he seized a motorcycle bearing

registration No. MP-05-MP-1371 with deflated

tyres which was parked some distance away

from the place of occurrence. In the course of

investigation, it is found that the motorcycle was

registered in the name of Laxmi Narayan

(PW-26), who happens to be nephew (the

sister’s son) of deceased Deepak. He prepared

the aforesaid seizure memos in the presence of

Rambagas and Laxman Singh. Pratap Singh (PW-

58), the photographer of the FSL Unit, took the

photographs Ex.P-106 to Ex.P-123 of both the

dead bodies from various angles.

(4.3) Having completed all the legal requirements at

the place of occurrence, Rai Singh Soni sent

both the dead bodies for post-mortems to the

Community Health Center Pipariya, where on

16.02.10 Dr. A.K. Agrawal (PW-46) performed

autopsy on the dead body of deceased Deepak,

and he and Dr. Anita Sahu (not-examined)
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jointly conducted post-mortem examination on

the dead body of the deceased-prosecutrix.

Ex.P-66 and Ex.P-67 are the post-mortem

reports of deceased Deepak and the deceased-

prosecutrix respectively. As per the post-mortem

examinations, they suffered homicidal death and

the deceased-prosecutrix was subjected to rape

before her death.

(4.4) Dr. A.K. Agrawal also prepared a slide of sticky

liquid deposited on deceased Deepak’s glans

penis and cut off finger-nails of his both hands

and he and Dr. Anita Sahu also prepared a slide

of vaginal swab of the deceased-prosecutrix, cut

off a few strains of her pubic hairs, finger-nails

of her both hands for forensic

tests/examinations.

(4.5) On the basis of the outcome of marg inquiry and

postmortem reports, on 16.02.10 Rai Singh Soni

lodged an FIR being Ex.P-88 and registered a

case at Crime No.63/2010 under Sections 302,

376, 201 and 34 of the IPC against an unknown

person.

(4.6) On 17.02.10, Sushila Bai (PW-27) identified the
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dead body of the deceased-prosecutrix, as her

daughter, aged about 17 years, whereupon

identification memo Ex.P-31 was prepared by Rai

Singh Soni.

(4.7) The investigation of the case was started under

the supervision of Rajesh Raghuwanshi (PW-57),

the Sub Divisional Police Officer, Pipariya on

account of the seriousness and gravity of the

crime. He constituted an investigating team (for

short ‘the team’) comprising Rai Singh Soni,

Dinesh Singh Chouhan @ D.S. Chouhan (PW-56),

the S.I. of Police Station Pipariya, Malkit Singh

(PW-59), the SHO of Police Station Shohagpur

and Umed Singh (PW-54) ASI of Police Station

Pipariya.

(4.8) At the preliminary stage of investigation, the

team came to know that both the deceased had

mobile phones with them at the time of incident,

but they were not found on the spot or with

their dead bodies or nearby the place of

occurrence. Therefore, the perpetrator(s) of

crime may have definitely taken the mobile

phones of the deceased with them after the
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commission of ghastly crime and they may be

using the mobile phones. That is why, they

thought that the culprits may be nabbed with the

help of International Mobile Equipment Identity

(for short ‘IMEI’) numbers of mobile phones,

mobile numbers and call-details records thereof.

(4.9) On 22.02.10, Rai Singh Soni seized a carton/box

of a mobile phone of Motorola company from the

possession of Sushila Bai, the mother of

deceased-prosecutrix, vide seizure memo

Ex.P-32, whereupon IMEI No.35648-40028-49822

is printed. However, the case diary and the call

details reveal that he made the mistake while

noting IMEI number in the seizure memo Ex.P-

32. The last digit is, in fact, zero instead of two.

Thus, the correct IMEI number, which is printed

on the carton, is 35648-40028-49820.

(4.10) The team also traced that deceased Deepak

purchased a prepaid SIM from the Idea Cellular

Limited (for short the Idea) in his name vide the

application Ex.P-86 and he was allotted the SIM

No.8991787107084727456 and Mobile No.97547-

75495.

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Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

(4.11) As per the call details of IMEI No.35648-40028-

49820 supplied by the service provider

companies, namely, the Bharti Airtel Limited (for

short ‘the Airtel’) and the Vodafone vide Ex.P-81

and Ex.P-60 respectively. Two SIMs bearing

Mobile Nos.96850-48589 and 95841-47788 were

used for a period between 14.02.10 and

23.02.10 in the mobile phone of the said IMEI

number.

(4.12) As per the call details Ex.P-77, Ex.P-80 and

Ex.P-82 provided by the Airtel, SIM of Mobile

No.97552-33915 was used in the mobile phone

bearing IMEI No.35845-50206-59230 for a period

between 10.02.10 and 28.02.10 (as per Ex.P-77,

Ex.P-80) and SIM of Mobile No.96308-46291 was

used in the mobile phone of aforesaid IMEI for a

period between 01.02.10 and 23.02.10 (as per

Ex.P-82).

(4.13) Vide Ex.P-102 to Ex.P-105, the Airtel also

provided particulars as to whose name SIMs of

some of mobile numbers are issued.

(4.14) The Idea provided call details Ex.P-142 of SIM of

Mobile No.97547-75495 for a period between
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01.02.10 and 16.02.10 which was installed in a

mobile phone bearing IMEI No.35845-50206-

59230.

(4.15) On the basis of aforesaid call details and

Ex.P-86, Malkit Singh, a member of the team,

found that the Airtel has allotted SIM of Mobile

No.97547-75495 to deceased Deepak in his own

name and he had installed the SIM in the mobile

phone bearing IMEI No.35845-50206-59230.

With that mobile phone, deceased Deepak talked

last time on 13.02.10 at about 2:58 p.m. At that

time, his mobile phone was in the range of Idea

mobile tower located in village Dongrykheda.

Under the range of said tower, the place of

occurrence falls. Later, the SIM of mobile

number 96308-46291 was installed in the mobile

phone. He also found that in the mobile phone of

the deceased-prosecutrix bearing IMEI

No.35648-40028-49820 SIM of Mobile Nos.

96850-48589 was installed and used.

(4.16) The team traced that SIM of Mobile No.95841-

47788 was purchased by accused-appellant Kapil

in the name of his maternal uncle Rajesh
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Purvalia (PW-13) from Vikram Singh (PW-49),

who was the authorised distributor of SIMs of

the Vodafone.

(4.17) On 24.02.10, Rai Singh Soni seized a mobile

phone of the Sigmatel company with two mobile

SIMs of the Airtel bearing Mobile Nos. 96308-

46291 and 97552-33915 from the possession of

Ashok s/o Bhurelal (PW-49) vide the seizure

memo Ex.P-6 in the presence of Ajab Singh

(PW-10) and Santosh (PW-50).

(4.18) On the basis of the information as stated in the

aforesaid para, on 02.03.10 Dinesh Singh, a

team member, arrested accused-appellant Kapil

vide the arrest memo Ex.P-53. On the same day,

he interrogated him in the presence of Lakhanlal

(PW-31) and Halke Bhaiya (PW-37). In the

course of interrogation, he disclosed amongst

other things that he and accused-appellant Ajju

@ Ajay had taken the mobile phones of the

deceased-prosecutrix and deceased Deepak

respectively. He also disclosed that the SIM

installed in the mobile phone of the deceased-

prosecutrix was removed, and he installed the
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new SIM bearing Mobile No.96850-48589, which

was given to him by accused-appellant Ajju. He

used the said SIM for a period between 14.02.10

and 16.02.10. Later, he threw the original SIM

and the SIM given by accused-appellant Ajju in a

water canal flowing nearby village Chirmeta.

Later, he used the mobile phone with SIM of

Mobile No.95841-47788. This SIM was given to

him by his brother Deepak (not-examined). He

also disclosed that his soil stained pants and

shirt were kept in his house. Upon the aforesaid

information, Dinesh Singh prepared disclosure

statement Ex.P-45. Pursuant to which, he seized

one mobile phone of Motorola company with a

SIM bearing Mobile No.95841-47788 and soil

stained pants and shirt at his instance from his

house in the presence of aforesaid prosecution

witnesses vide the Ex.P-47.

(4.19) On 02.03.10, Dinesh Singh arrested accused-

appellant Ashok vide the arrest memo Ex.P-51 in

the presence of Lakhanlal and Halke Bhaiya. On

the same day, he interrogated him in their

presence. Whereupon, accused-appellant Ashok
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revealed amongst other things that he had

removed a pair of silver payals (anklets) of the

deceased-prosecutrix and kept the payals, his

own mobile phone with the SIM, which he used

before and after incident, and soil stained pants

and shirt in various places of his house.

Thereupon, Dinesh Singh drew his disclosure

statement Ex.P-41. On 05.03.10, he recovered a

mobile phone of Nokia Company model No.1028

with SIM of Mobile No.95755-31130, the payals

and soil stained clothes vide the recovery memo

Ex.P-42 at his instance in the presence of

aforesaid prosecution witnesses.

(4.20) On 02.03.10, Dinesh Singh arrested accused-

appellant Ramjeevan vide the arrest memo

Ex.P-52 in the presence of Lakhanlal and Halke

Bhaiya. On being interrogated by Dinesh Singh,

he disclosed that he had killed deceased Deepak

by hitting with a big stone on his head and

threw it in the field where the crime was

committed, and he had hidden his soil stained

pants and shirt in the agricultural field of one

Kapil (not-examined) situated on the out-skirts
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of village Chirmeta. Upon the said information,

Dinesh Singh drew disclosure statement Ex.P-43

and recovered the aforesaid articles at his

instance vide the memos Ex.P-50 and Ex.P-57 in

the presence of the aforesaid prosecution

witnesses.

(4.21) On 13.03.10, accused-appellant Ajju was

arrested by Dinesh Singh vide the arrest memo

Ex.P-12 in the presence of Sheikh Yakub (PW-

16) and Narsinghdas (not-examined). On the

same day, he was interrogated by him in the

presence of Laxman Singh and Halke Bhaiya. He

disclosed amongst other things that he took

deceased Deepak’s mobile phone, his shoes and

a pocket diary. He left his own chappals at the

place of occurrence as the same got stuck in

mud. Later, he threw the shoes in one

agricultural field. He sold the mobile phone to

Ashok Raghuvanshi (PW-39) at Rs.450/-. He also

stated that at the relevant time he had a stolen

motorcycle make Hero Honda model CD-Dawn,

which he has kept in the house of Pooja’s grand-

father. Thereupon, Dinesh Singh drew his
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disclosure statement Ex.P-35.

(4.22) On 13.03.2010, Dinesh Singh vide the seizure

memo Ex.P-36 seized the shoes of deceased

Deepak from the agricultural field of one Pop

Singh Raghuvanshi (not-examined), which is

situated on the out-skirts of village Kheriya, at

his instance in the presence of Laxman Singh

and Hakle Bhaiya. On 15.03.2010, he seized one

motorcycle without registration plate make Hero

Honda CD-Dawn, soil stained pants and shirt at

his instance from the house of Pooja’s grand-

father in the presence of Laxman Singh and

Halke Bhaiya vide the seizure memo Ex.P-37, but

could not recover the pocket diary and the

chappals at his instance. In this connection, he

prepared search Panchnamas Ex.P-38 and

Ex.P-39.

(4.23) On 21.03.2010, Basant Kumar (PW-32) held the

test identification parade of seized articles in the

presence of Laxman Singh (PW-28) and Dinesh

s/o Chhotelal (PW-23). In the identification

parade, Meena Bai (PW-9), the wife of deceased

Deepak, identified a pair of shoes, one mobile
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phone, one belt and one purse of her husband.

Thereupon, identification memo Ex.P-5 was

prepared by said Basant Kumar.

(4.24) On 02.05.2010, accused-appellants, namely,

Kapil, Ashok and Ramjeevan and on 14.03.2010

accused-appellant Ajju were medically examined

by Dr. A.K. Agrawal (PW-46), and he gave the

reports Ex.P-69, Ex.P-72, Ex.P-73 and Ex.P-74

respectively to the effect that they are capable

of doing sexual intercourse. He also noticed

some minor healed-up injuries on the person of

accused-appellant Ramjeevan, which he

mentioned in his report Ex.P-73. In addition to

the aforesaid examinations, he prepared slides

of their semen and cut off a few of their pubic

hairs and handed them over to Yashwant

(PW-19) and Sheikh Yakub (PW-16) in sealed

packets for forensic tests.

(4.25) On 05.05.2010, Kishore Shah (PW-33) held the

test identification parade of seized articles in the

presence of Harkishan (PW-18) and Preetam

Singh (PW-44), in which Sushila Bai, the

deceased-prosecutrix’s mother, identified one
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mobile phone and one pair of payals as those of

the deceased-prosecutrix. In this regard, he

prepared identification memo Ex.P-15 .

(4.26) In the course of investigation, Rai Singh Soni,

Umesh Singh (PW-54) and Dinesh Singh (PW-56)

have recorded the case diary statements of all

the prosecution witnesses.

(4.27) During the course of investigation, the police got

statements of Ashok s/o Bhurelal and Ramvilash

recorded under Section 164 Cr.P.C. and the

same are exhibited as Ex.P-62 and Ex.P-64

respectively.

(4.28) The incriminating articles mentioned in the letter

Ex.P-144 were sent to the FSL Sagar for the

purpose of forensic tests and the DNA

analysis/typing/profiling/finger-printing . There-

upon, the FSL sent the DNA report Ex.P-143 and

one unexhibited report pertaining to

examinations of the samples of soil collected

from the place of offence and soil-stains found

on the clothes of the accused-appellants. The

DNA report Ex.P-143 has confirmed that the

semen found in the vaginal swab of the
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deceased-prosecutrix and on her underwear is of

all the accused-appellants in addition to

absconding accused persons, namely, Vimlesh

and Munda @ Parsram, who have absconded in

the course of trial on 16.08.2013 (see para 8 for

detail).

5. Upon the seizure of incriminating articles at the

instances of the accused-appellants and absconding accused

Munda @ Parsram and Vimlesh and the DNA test report

Ex.P-143, the team arrived at the ultimate conclusion that the

accused-appellants and the aforesaid absconding accused

persons had committed the ghastly crime. On 28.05.10, the

police filed the charge-sheet against the accused-appellants

and the absconding accused persons under Sections 302,

376(2)(g), 201 and 34 IPC in the court of A.K. Nagotra, the

Judicial Magistrate First Class, Pipariya. The learned

Magistrate committed the case to the Sessions Court vide the

committal order dated 23.06.2010. Thereupon, the case is

registered as Sessions Trial No.200/2010 and is made over to

the court of Additional Sessions Judge, Pipariya.

6. The learned ASJ framed the charges against the

accused-appellants and absconding accused persons under

Sections 376(2)(g), 302 r.w. 34 (two counts) in the
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alternative 302 (two counts), simpliciter, and 201 IPC. They

denied the charges and claimed to be tried.

7. The prosecution examined 61 witnesses, exhibited 144

documents and marked all the seized articles in the support

of its case, whereas the defence exhibited 6 documents and

examined one witness Dr. Sudhir Jaisani (DW-1) in their

defence. In the examinations under Section 313 Cr.P.C., the

accused-appellants denied all the incriminating evidence and

circumstances appearing against them in the case. However,

they admitted their arrests in the case. They have taken the

common defence of false implication in the case.

8. It is worthwhile to mention at this stage that when the

case was posted for final arguments accused Vimlesh and

Munda @ Parasram have escaped from the custody of Sub-

Jail Pipariya on 16.08.2013. The trial court has declared them

absconders vide order dated 06.06.2014 and ordered to

separate their trial.

9. Upon the evaluation of evidence in the impugned

judgment, the learned ASJ has found the accused-appellants

guilty for committing gang-rape upon the deceased-

prosecutrix and in furtherance of causing disappearance of

the evidence of the gang-rape they have murdered her and

deceased Deepak. Upon the aforesaid findings, the learned
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ASJ has convicted and sentenced the accused-appellants as

stated in para 2 of this judgment.

10. We have heard arguments advanced by the learned

counsel for the parties at length. For the purpose of

convenience, we categorize broadly their arguments under

two heads “first” on the point of conviction and “second” on

the point of sentence .

Point No.1

11. Smt. Divyakirty Bohre, the learned Government

Advocate, has submitted that the prosecution case is entirely

based upon the circumstantial evidence, yet it has proved the

guilt of the accused-appellants by unimpeachable evidence

and if all the circumstances, which are of conclusive nature

and tendency and which are not capable of being explained,

are put together, they form a complete chain pointing

unerringly towards the guilt of the accused-appellants. She

submitted that the DNA report Ex.P-143 itself is capable of

proving conclusively the guilt of the accused-appellants. As to

reliability of the DNA report, she submitted that as per the

research carried out with the exception of identical twins not

two individuals have the same DNA blue print. She submitted

that it is not the defence of any of the accused-appellants

that he has twin siblings. Hence, the aforesaid possibility
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does not exist in the case. She submitted that the DNA tests

are carried out on the basis of the DNA samples taken from

the semen of the accused-appellants. As per available

research data, there is one chance in 300 million that the

semen samples could have come from someone other than

the specific individual. In this regard, the learned counsel has

placed a research paper on record. She submitted that in the

cases of Kamti Devi Vs. Poshi Ram , (2001) 5 SCC 311,

Santosh Kumar Singh Vs. State through CBI , (2010) 9 SCC

747, and Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik ,

AIR 2014 SC 932, the Supreme Court has observed that the

DNA report must be accepted as scientifically accurate and

exact science. She submitted that the apex Court in the case

of Anil Vs. State of Maharashtra , (2014) 4 SCC 69, affirmed

the conviction of the accused-appellant under Section 377

IPC placing reliance on the DNA report and a Division Bench

of this High Court in the case of Jitendra @ Jeetu and others

Vs. State of M.P. , 2014 (5) MPHT 45, confirmed the death

sentence awarded to the appellants placing mainly reliance

on the DNA report. She submitted that in the present case,

the DNA report confirms that the accused-appellants

committed gang-rape upon the deceased-prosecutrix. She

also brought to our notice that the U.S. Supreme Court in the
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case of United States Vs. Jakobetz , [955 F.2d 786 (2d Cir.

1992)] had upheld the conviction of the rapist only on the

basis of DNA evidence available against him. She submitted

that the defence has not challenged seriously in the cross-

examination of Dr. A.K. Agrawal (PW-46) that both the

deceased had suffered homicidal death. She concluded her

arguments by saying that the order of conviction passed by

the learned ASJ is based upon proper appreciation of

evidence. Hence, there is no need on the part of this court to

interfere with it.

12. Learned counsel for accused-appellant Ashok has

submitted that Lakhanlal (PW-31) and Halke Bhaiya (PW-37)

are the witnesses of all the arrest memos, the disclosure

statements and the seizure/recovery memos of the accused-

appellants including the absconder accused persons.

Lakhanlal is a permanent resident of village Kalmesera of

which deceased Deepak was also resident (as per para 16 of

his deposition). Halke Bhaiya is the cousin-brother of

deceased Deepak (as per para 20 of his deposition). Hence,

they are not independent witnesses of disclosure statement

Ex.P-41 and recovery memo Ex. P-42, therefore, they are not

reliable witnesses. He submitted that an investigating officer

tends to do padding of the prosecution case. Under the
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circumstances, the testimony of Dinesh Singh, who is the

author of aforesaid disclosure statement and recovery memo,

cannot be relied upon. Learned ASJ has wrongly relied upon

the recoveries of a pair of payals, a mobile phone and soil

stained clothes at the instance of accused-appellant Ashok.

He submitted that as per the identification memo Ex.P-15,

Kishore Shah (PW-33) conducted identification parade for the

seized articles. But, he has completely denied in his evidence

to have conducted the identification parade and to have got

the articles identified by Sushila Bai (PW-27), the mother of

the deceased-prosecutrix. Moreover, she has admitted in her

evidence that she had identified the aforesaid articles at the

police station. As per identification memo, the identification

was held in the presence of Harkishan (PW-18) and Preetam

Singh (PW-44). Harkishan has admitted that he is the

maternal-uncle of the deceased-prosecutrix in para one of his

deposition. Preetam Singh has admitted in his cross-

examination that he has merely put his signature upon the

identification memo at the police station. Since the

identification of the seized articles were not conducted

following the due procedure, it is doubtful that the articles

namely payals and mobile phone belong to the deceased-

prosecutrix. He submitted that the prosecution had sent soil-
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stained clothes seized from the possessions of the accused-

appellants to FSL Sagar in order to ascertain whether the

samples of soil collected from the place of crime and stains of

soil found on their clothes are same in the texture and

composition. The FSL report thereof is on record. But the

prosecution has not exhibited it in the course of trial. The

FSL report being of scientific nature falls under Section 293

Cr.P.C. and, therefore, it is admissible in evidence as per

provision of Section 294 Cr.P.C. He submitted that for the

aforesaid reasons the defence can rely upon the unexhibited

report. In this regard, reliance is placed by him upon the

decisions of this court rendered in cases of Brijlal Ghosi and

another Vs. State of M.P. , ILR (2012) MP 1351, and State of

M.P. Vs. Ghanshyam , 2008 Cr.L.J. 107,. He submitted that

according to the report, stains of soil found on the seized

clothes of accused-appellant Ashok and the samples of soil

collected from the place of occurrence are different in the

texture and composition. Thus, the FSL report disproves

completely the presence of accused-appellant Ashok at the

place of occurrence. He submitted that the prosecution has

not proved satisfactorily that the slide of vaginal swab of the

deceased-prosecutrix and the slide of accused-appellant

Ashok’s semen were prepared taking all the necessary
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precautions and they were sealed properly before sending to

the FSL. In these circumstances, it is not safe to place

absolute reliance upon the DNA report Ex.P-143. Upon the

aforesaid arguments, he submitted that there is no cogent

and concrete evidence to connect accused-appellant Ashok to

the crime, therefore, the impugned judgment insofar as it

relates to accused-appellant Ashok is liable to be set aside.

13. Learned counsel for accused-appellant Ramjivan has

adopted the arguments raised by learned counsel for

accused-appellant Ashok insofar as the arguments support his

case. Hence, there is no need to recapitulate the arguments.

He submitted that pursuant to disclosure statement Ex.P-43

of accused-appellant Ramjivan, seizing officer Dinesh Singh

had seized a stone near the place of occurrence and his soil-

stained clothes vide the seizure memos Ex.P-44 and Ex.P-57

respectively. The police did not send the seized stone to the

FSL for forensic test to ascertain whether it has stains of

human blood. Since stones of all sizes are found everywhere,

the seizure of a stone at his instance does not have any

evidentiary value without the forensic test. He submitted that

as per the unexhibited report of the FSL, the composition of

soil collected from the place of occurrence and the stains of

soil found on his seized clothes are different. Hence, the
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seizure of his soil-stained clothes does not connect him with

the crime. Upon these arguments, he submitted that there is

no evidence at all on record to connect accused-appellant

Ramjivan even remotely to the crime. Therefore, the

impugned judgment deserves to be set aside against

Ramjivan.

14. Learned counsel for accused-appellant Kapil has also

adopted the arguments advanced by learned counsel for

accused-appellant Ashok to the extent which has direct

relevancy to his case. He submitted that Dinesh Singh

recovered one mobile phone of the Motorola Company with

SIM of Mobile No.95841-47788 and seized his soil-stained

clothes vide the seizure memo Ex.P-47 from his house in

pursuance of the disclosure statement Ex.P-45. As per call

details Ex.P-60, the SIM of aforesaid mobile number was

installed in a mobile phone bearing IMEI No.35648-40028-

49820, whereas Rai Singh seized a carton of mobile phone of

the Motorola Company from the deceased-prosecutrix’s

mother Sushila Bai bearing IMEI No.35648-40028-49822 vide

the seizure memo Ex.P-32. Thus, he had not recovered the

mobile phone from the possession of accused-appellant Kapil,

which was alleged to be in possession of the deceased-

prosecutrix at the time of incident. He submitted that as per
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the unexhibited FSL report, the composition of soil found on

his seized clothes are different from the composition of soil

collected from the place of occurrence. Hence, the seizure of

his soil-stained clothes does not have any evidentiary value.

With these submissions, learned counsel submitted that there

is no evidence on record to connect accused-appellant Kapil

to the crime. He is, therefore, wrongly convicted and

sentenced.

15. Learned counsel for accused-appellant Ajju @ Ajay has

also supported the arguments raised on behalf of accused-

appellant Ahsok, insofar as they are relevant to his case. He

submitted that on 24.02.10 vide the seizure memo Ex.P-6 Rai

Singh seized one mobile phone of the Sigmatel Company and

two SIMs of Mobile Nos.96308-46291 and 97552-33915 from

the possession of Ashok (PW-39), whereas the disclosure

statement Ex.P-35 of him was recorded by Dinesh Singh on

13.03.10 in which he revealed first time amongst other things

that he had sold the mobile phone of deceased Deepak to

aforesaid Ashok at Rs.450/-. If these facts are put together,

he submitted, it is crystal clear that the mobile phone was

seized about 17 days prior to the recording of his disclosure

statement Ex.P-35. This fact proves amply that the mobile

phone was not recovered at his instance. He submitted that
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Ashok (PW-39) has denied in his evidence that accused-

appellant Ajju had sold him the mobile phone. Seizure

witnesses namely Ajab Singh (PW-10) and Santosh (PW-50)

s/o Tularam have also not supported the seizure of mobile

phone and aforesaid SIMs from the possession of said Ashok.

They are also declared hostile by the prosecution. He

submitted that there is no cogent and reliable evidence that

the seized mobile phone belongs to deceased Deepak. He

submitted that Dinesh Singh recovered deceased Deepak’s

shoes vide the memo Ex.P-36 on the basis of his disclosure

statement Ex.P-35 from the agricultural field of one Pohap

Singh Raghuvanshi. However, the prosecution had not made

him a witness in the case. Laxman Singh and Halke Bhaiya,

who are the witnesses of disclosure statement Ex.P-35 and

seizure memo Ex.P-36, are interested witnesses. Hence, the

recovery of deceased Deepak’s shoes at the instance of him

are not proved beyond doubt. He submitted that vide the

seizure memo Ex.P-37, Dinesh Singh seized one motorcycle

and soil-stained clothes at the instance of him. There is no

evidence on record that the seized motorcycle was used in

the commission of offence. As per the unexhibited FSL report,

the soil stains found on the clothes of him are entirely

different from the soil collected from the scene of crime in
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composition. Hence, the seizure of his clothes does not

connect him to the crime. As such, there is no evidence

worthy of credence on record as to the involvement of him in

the crime. Hence, he is convicted and sentenced upon

erroneous findings.

Point two

16. Learned Government Advocate has submitted that as

per the DNA report Ex.P-143, in the vaginal swab and on the

underwear of the deceased-prosecutrix traces of semen of

not only all the four accused-appellants, but also both the

absconding accused persons are found. Thus, it proves that

all the six perpetrators committed gang-rape upon her. As per

the post-mortem reports of both the deceased, the deceased-

prosecutrix suffered homicidal death by strangulation,

whereas deceased Deepak suffered homicidal death on

account of fracture in the temporal bone of his head. Thus,

the mode of their deaths proves that they were murdered in a

cruel and barbaric manner. As such, all the four accused-

appellants and both the absconding accused are beasts in the

garb of human bodies. She submitted that in recent times

many cases are reported in the newspapers in which victims

are first raped/gang-raped and thereafter they are murdered

by rapists with the criminal intent that they could not come
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forward to give evidence against them in the courts. In the

instant case, the accused-appellants committed murder of the

deceased-prosecutrix and deceased Deepak with the aforesaid

criminal intent. In the circumstances, there is a crying need

for sending messages on the part of the courts to the rapists

that the courts will award them only death sentences in such

type of cases. With these submissions, she prayed for

confirmation of death sentences awarded to the accused-

appellants. In support of her submissions, she relied upon the

following cases in which death sentences are confirmed; In

reference Vs. Guddu @ Dwarikendra , (2012) 2 MPHT 182 DB

(MP), State of M.P. Vs. Shyam Singh @ Bhima , 2013 Cr.L.R.

(M.P) 79, In reference Vs. Sunil Balai , 2013 Cr.L.J. (M.P) 791,

Mofil Khan and another Vs. State of Jharkhand , (2015) 1 SCC

67, Vasanta Sampat Dupare Vs. State of Maharashtra , (2015)

1 SCC 253, and Shatnam Vs. State of U.P. , (2015) 6 SCC

632,.

17. Per contra, learned counsels for the accused-

appellants have submitted in one voice on the point of death

penalty that the instant case does not pass the test of “the

rarest of rare case” as laid down by the Supreme Court in

para 39 of its decision rendered in the case of Machhi Singh

and others Vs. State of Punjab , (1983) 3 SCC 470, and the
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guidelines given by the Supreme Court in the aforesaid case

and in the case of Bachan Singh Vs. State of Punjab , (1980) 2

SCC 684,. They further submitted that the decree of brutality

in committing of murder and the numbers of murders are also

not the criteria for awarding death sentence, placing reliance

upon the law laid down by the Supreme Court in the cases of

Panchsheel Vs. State of U.P. , (1998) 7 SCC 177, Omprakash

Vs. State of Haryana , (1999) 3 SCC 19, and Ram Pal Vs. State

of M.P. , (2003) 7 SCC 141,. Upon these submissions, they

urged that if this court confirms the findings of convictions

and sentences under Section 302 r.w. 34 (two counts) as

imposed by the trial court, then each of the accused-

appellants be sentenced for life imprisonment in place of

death sentence thereunder.

18. After being heard learned counsels for the parties at

length, we have to satisfy ourselves first whether the trial

court has rightly convicted the accused-appellants for the

offences punishable under Sections 376(2)(g), 302 r.w. 34

and 201 IPC in view of the law laid down by the Supreme

Court in the case of Mohinder Singh Vs. State of Punjab , 2013

Cr.L.J. 1559,.

19. Upon the perusal of the impugned judgment, we find

that it suffers from verbosity and the learned ASJ has not
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given specific findings as to what circumstances are proved

against each accused. However, it appears to us that the

conviction of the accused-appellants is mainly based upon the

DNA report Ex.P-143. In the course of arguments, learned

Government Advocate has submitted that the prosecution has

proved following circumstances against the accused-

appellants:-

(i) At the time of incident both the deceased
were in the company of each other.

(ii) Recovery of the deceased-prosecutrix’s
mobile phone with the SIM of Mobile No.95841-47788 from
the possession of accused-appellant Kapil.

(iii) Accused-appellant Ashok had used mobile
phone of the deceased-prosecutrix on 14.02.10 with SIM of
mobile No.95755331130 and he was found in possession of
the deceased-prosecutrix’s a pair of silver payals.

(iv) Recovery of deceased Deepak’s mobile phone
and shoes from the possession of accused-appellant Ajju.

(v) The DNA report confirming that the
deceased-prosecutrix was subjected to gang-rape by all the
four accused-appellants.

(vi) The autopsy reports confirming that both the
deceased had suffered homicidal death.

20. Before analyzing the aforestated circumstances, it

would be pertinent to refer to some of the illuminating

judgments in which legal principles are propounded for
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convicting an accused solely on the basis of circumstantial

evidence in a murder case.

21. In the case of Sharad Birdhichand Sarda V. State of

Maharashtra , (1984) 4 SCC 116, the Supreme Court has set

out the following five golden principles for proving a case

based on circumstantial evidence:-

(i) the circumstances from which the
conclusion of guilt is to be drawn must or should be
and not merely “may be” fully established;

(ii) the facts so established should be
consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that the
accused is guilty;

(iii) the circumstances should be of a
conclusive nature and tendency;

(iv) they should exclude every possible
hypothesis except the one to be proved; and

(v) there must be a chain of evidence so
complete as not to leave any reasonable ground for
the conclusion consistent with the innocence of the
accused and must show that in all human probability
the act must have been done by the accused.

In this case the Supreme Court has also held that the

onus is on the prosecution to prove that the chain is

complete and the infirmity or lacuna in the prosecution case

cannot be cured by a false defence of plea.

22. The Supreme Court had reiterated the same legal

principles in the cases of Padala Veera Reddy Vs. State of

A.P. , AIR 1990 SC 79, and Bodh Raj alias Bodhu and others

Vs. State of Jammu and Kashmir , AIR 2002 SC 3164, though
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they were restated in a different way. Almost similar view

was also taken by the Supreme Court in State of Goa Vs.

Sanjay , 2007 AIR SCW 2226,.

23. In the case of State of U.P. Vs. Ashok Kumar

Shrivastava , 1992 Cr.L.J. 1104 SC, the Supreme Court has

sounded a note of warning that great care must be taken in

evaluating circumstantial evidence. Therein, it is pointed out

that if the evidence relied upon is reasonably capable of two

inferences, then one in favour of the accused must be

accepted. It is also pointed out that the circumstances relied

upon must be found to have been fully established and the

cumulative effect of all the circumstances so established must

be consistent only with the hypothesis of the guilt of the

accused.

24. In the case of Raj Kumar Singh @ Raju @ Batiya Vs.

State of Rajsthan , (2013) 5 SCC 722, the Supreme Court after

reiterating the same principles as laid down in the case of

Sharad Birdhichand Sarda (supra) has held that in a criminal

trial, suspicion no matter how strong, cannot and must not be

permitted to take place of proof.

25. We may also make a reference to a decision of the

Supreme Court rendered in the case of C. Chenga Reddy Vs.

State of A.P. , (1996) 10 SCC 193, wherein it has been
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observed thus:-

“21. In a case based on circumstantial
evidence, the settled law is that the
circumstances from which the conclusion of
guilt is drawn should be fully proved and such
circumstances must be conclusive in nature.
Moreover, all the circumstances should be
complete and there should be no gap left in
the chain of evidence. Further, the proved
circumstances must be consistent only with
the hypothesis of the guilt of the accused and
totally inconsistent with his innocence.”

26. In the case of Manu Sharma Vs. State NCT Delhi , AIR

2010 SC 2352, the Supreme Court in para 274 of the decision

has held that where an accused furnishes a false answer as

to a proved circumstance in his examination under Section

313 Cr.P.C., the court ought to draw an adverse inference

against the accused and such an inference shall be an

additional circumstance for proving the guilt of him.

27. In the case of Munish Mubar Vs. State of Haryana ,

(2012) 10 SCC 464, the Supreme Court has held that it is

obligatory on the part of the accused while being examined

under Section 313 Cr.P.C. to furnish some explanation with

regard to incriminating circumstances associated with him.

The court must take note of such explanation even in a case

of circumstantial evidence so as to decide whether the chain

is complete? The same view was taken by the Supreme Court

in the case of Pudhu Raja Vs. State , (2012) 11 SCC 196,.
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28. In the case of Sanatan Vs. State of West Bengal ,

2010 Cr.L.J. 3871, the Supreme Court has observed as under

when a case rests upon circumstantial evidence.

“That the circumstantial evidence is more
reliable than eye witness. The basic principle
of circumstantial evidence is that it should be
consistent with the guilt of the accused and
inconsistent with innocence of the accused”

29. In the case of Musheer Khan @ Badshah Khan and

Anr. Vs. State of M.P. , 2010 (2) JLJ 104, the Supreme Court

has cited Lord Coleridge who has stated that circumstantial

evidence is like gossamer thread, light and as unsubstantial

as the air itself as may vanish of merest of touch.

30. Sir Alfred Wills in his admirable book “Wills’

Circumstantial Evidence (Chapter VI)” lays down the following

rules specially to be observed in the case of circumstantial

evidence: (1) the facts alleged as the basis of any legal

inference must be clearly proved and beyond reasonable

doubt connected with the factum probandum; (2) the burden

of proof is always on the party who asserts the existence of

any fact, which infers legal accountability; (3) in all cases,

whether of direct or circumstantial evidence the best

evidence must be adduced which the nature of the case

admits; (4) in order to justify the inference of guilt, the

inculpatory facts must be incompatible with the innocence of
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the accused and incapable of explanation, upon any other

reasonable hypothesis than that of his guilt; and (5) if there

be any reasonable doubt of the guilt of the accused, he is

entitled as of right to be acquitted.

31. From a careful reading of the aforenoted decisions

of the Supreme Court and the other material, it is crystal

clear that the basic principle of criminal law is that an

accused is presumed to be innocent until his/her guilt is

proved and, therefore, in a case of circumstantial evidence it

is necessary for the prosecution to prove each fact which

forms a chain of evidence so complete which leads to the

inevitable and only conclusion of guilt of the accused. In a

case of circumstantial evidence the facts established by the

prosecution should be consistent only with the hypothesis of

guilt of the accused, and the facts should not indicate the

possibility of any other conclusion. The court has a duty to

ensure that mere suspicion or conjectures would not take the

place of legal proof and the prosecution has to produce clear,

cogent and unimpeachable evidence which leads to the sole

conclusion of guilt of the accused.

32. Now, we will proceed to test the circumstantial

evidence mentioned in para 19 on the touch stone of the

propositions of law relating to the circumstantial evidence.
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33. Sushila Bai (PW-27), the mother of the deceased-

prosecutrix, has testified in paras 5 and 8 that her deceased

daughter knew deceased Deepak and he gave her a mobile

phone on her birthday. She is not cross examined upon her

said statement by the defence. Therefore, her statement

remains uncontroverted. Upon which, it is held that both the

deceased were on intimate terms.

34. Durjan Singh (PW-14) and his son Mukesh (PW-25)

have stated in their evidence that the police recovered two

dead bodies from their agricultural field. Laxman Singh

(PW-28) has deposed that the police prepared a spot

panchnama Ex.P-33 of the place where the two dead bodies

were lying. There is nothing in their cross-examinations to

disbelieve them. Upon the evidence of the aforesaid

witnesses and Ex.P-33, it is crystal clear that the dead bodies

of the two were lying adjacent to each other.

35. On the basis of aforesaid evidence, we hold that just

before and at the time of the incident both the deceased

were in the company of each other. Thus, the circumstance

No.1 is proved by the prosecution beyond reasonable doubts.

36. Before dealing with the circumstances number (ii),

(iii) and (iv), it is relevant to consider the evidence rendered

by Pradeep singh (PW-36), Sai Dutt Bohre (PW-52), Santosh
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Jadav (PW-53) and Rajesh Kumar Singh (PW-55), who are the

nodal officers of the mobile service provider companies,

namely, the Vodafone, the Airtel, the Reliance Communication

and the Idea. Pradeep Singh tendered in his evidence call

details Ex.P-60 of a mobile phone bearing IMEI

No.356484002849820 for the period between 14.02.2010 and

23.02.2010. Sai Dutt Bohre tendered in his evidence call

details of mobile numbers 9755233915 and 9685048589 Ex.P-

77 and Ex.P-79 respectively for a period between 10.02.2010

and 28.02.2010 and call details of mobile phones bearing

IMEI Nos. 358455020659230 and 35648002849820 Ex.P-80

and Ex.P-81 for a period between 14.02.10 and 20.02.10,

and, 14.02.10 and 23.02.10 respectively. Santosh Jadhav

provided call details of Mobile No.93030-87081 Ex.P-85 for a

period between 01.02.10 and 21.02.10. Rajesh Kumar Singh

has stated in his evidence that the Idea had allotted

deceased Deepak Mobile No.97547-75495 upon his application

vide Ex.P-86. He further stated that as per call details

Ex.P-142 the SIM of aforesaid mobile number was used in the

mobile phone bearing IMEI No.35845-50206-59230 for a

period between 01.02.10 and 13.02.10. The aforesaid

witnesses are subjected to gruelling cross-examinations by

the defence on the authenticity of call details. They have
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stated that the call details are system generated, therefore,

there is no possibility of fabrication of call details and the

same are tamper-proof. In the case of Munish Mubar (supra),

the Supreme Court has relied upon the call details of the

accused and the slain to prove the fact that they were in

contact with each other before the incident. Hence, we place

implicit reliance on the aforesaid call details.

37. Sushila Bai (PW-27), the mother of the deceased-

prosecutrix, has deposed that she had given a carton of

mobile phone of Motorola Company to the police, which was

seized by the police vide the seizure memo Ex.P-32 in the

presence of Jitendra (PW-42) and Bablu (PW-43). Both the

aforesaid witnesses have corroborated the testimony of

Sushila Bai. As per the seizure memo Ex.P-32, Rai Singh Soni

had seized the carton. It has been already stated that he had

died in a vehicular accident before recording of his statement

in the trial court. Upon the perusal of their evidence, we find

that they are independent witnesses and there is nothing

adverse in their cross-examinations to disbelieve their

testimonies. Hence, their evidence is fully reliable. Moreover,

the seizure of the carton from the possession of Sushila Bai is

not challenged by the defence in her cross-examination.

Relying upon the evidence of Sushila Bai and the aforesaid
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seizure witnesses, we hold that Rai Singh Soni had seized a

carton of mobile phone of the Motorola Company from the

possession of Sushila Bai vide the seizure memo Ex.P-32 on

22.02.10.

38. Rai Singh Soni has mentioned in the seizure memo

Ex.P-32 as that on the seized carton IMEI No.35648-40028-

49822 is printed. However, as per the case-diary and call

details Ex.P-60, Ex.P-79, Ex.P-80 and Ex.P-81, the team

sought call details of mobile phone bearing IMEI No.35648-

40028-49820 from the concerned mobile service provider

companies. Therefore, on the basis of the aforesaid

documents, we safely hold that Rai Singh Soni had seized a

carton vide seizure memo Ex.P-32 upon which IMEI

No.35648-40028-49820 is printed. However, he has written

last digit “two” instead of “zero” in the seizure memo

Ex.P-32 by mistake. For the aforesaid reasons, the benefit of

said mistake cannot be extended to accused-appellant Kapil

as sought by his counsel in the course of arguments.

39. Dinesh Singh (PW-56), a member of the team, has

deposed that on 02.03.10 he arrested accused-appellant Kapil

before Lakhan Lal (PW-31) and Halke Bhaiya (PW-37).

Thereafter, he interrogated accused-appellant Kapil before

them. He disclosed him amongst other things that he had
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lifted the mobile phone from the dead body of the deceased-

prosecutrix. Thereafter, he removed the original SIM and

installed therein the SIM of Mobile No.96850-48589 which

was given to him by accused-appellant Ajju. He used the

mobile phone with the aforesaid SIM for a period between

14.02.10 and 16.02.10. Later, he threw the original SIM and

the aforesaid SIM in a water canal passing nearby village

Chirmeta. Thereafter, he installed the SIM of Mobile

No.95841-47788 in the mobile phone. The said SIM was given

him by his brother Deepak. Thereupon, he drew disclosure

statement Ex.P-45. On 05.03.10, he recovered the mobile

phone of the Motorola Company with a SIM of Mobile

No.95841-47788 and his soil-stained pants and shirt from his

house in the presence of aforesaid witnesses vide the seizure

memo Ex.P-47. It is pertinent to mention here that Dinesh

Singh could not recover the original SIM of the deceased-

prosecutrix and SIM of Mobile No.96850-48589 at the

instance of accused-appellant Kapil from the water canal. In

this regard, he has drawn search memo Ex.P-56.

40. Lakhan Lal and Halke Bhaiya have fully corroborated

the version given by Dinesh Singh. It has been argued by the

defence that Lakhan Lal is a permanent resident of village

Kalmesera, the native place of deceased Deepak, and Halke
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Bhaiya is the cousin-brother of deceased Deepak. Hence, they

are interested witnesses. Consequently, their evidence is not

reliable. We find that they are put to gruelling cross-

examinations on behalf of accused-appellant Kapil, but there

is nothing adverse in their cross-examinations to draw the

inference that they have given evidence being prejudiced

against accused-appellant Kapil. Therefore, we hold their

testimonies reliable.

41. Dinesh Singh is also subjected to lengthy cross-

examination on behalf of accused-appellant. However, there

is nothing in his cross-examination to disbelieve his evidence.

It is pertinent to mention here that in the case of Munish

Mubar (supra), the Investigating Officer seized incriminating

articles from the possession of accused in the absence of

public witnesses, but the Supreme Court has relied upon the

statement of the Investigating Officer. In view of the above

ratio, we may rely on the sole evidence of Dinesh Singh

assuming for the sake of arguments that Lakhan Lal and

Halke Bhaiya are interested witnesses.

42. On the basis of the aforesaid evidence, we hold that

Dinesh Singh seized a mobile phone of Motorola Company

with SIM of Mobile No.95841-47788 from the possession of

accused-appellant Kapil.

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43. As per call details Ex.P-79 and Ex.P-81 for a period

between 14.02.10 and 16.02.10 SIM of Mobile No.96850-

48589 was installed in a mobile phone of IMEI No.35648-

40028-49820. As per call details Ex.P-60 for a period between

21.02.10 and 23.02.10 the SIM of Mobile No.95841-47788

was installed in the mobile phone of aforesaid IMEI number.

It has already been held that the mobile phone of aforesaid

IMEI number belongs to the deceased-prosecutrix. As per the

Marg intimation report Ex.P-19, inquest report of the

deceased-prosecutrix Ex.P-34 and the statement of Dr.A.K.

Agrawal (PW-16) on the timing of death of the deceased-

prosecutrix, it can be held that she was murdered between

13.02.10 and 15.02.10, but her mobile phone was in use till

23.02.10. Accused-appellant Kapil has not given any cogent

explanation in his examination under Section 313 Cr.P.C. or

otherwise as to how he has acquired the mobile phone of the

aforesaid IMEI number and the company.

44. In view of the aforesaid analysis of the evidence, we

hold that the prosecution has proved circumstance No.2

beyond reasonable doubts that the deceased-prosecutrix’s

mobile phone was recovered from the possession of accused-

appellant Kapil and he had used the mobile phone till

23.02.10.

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45. Dinesh Singh (PW-56) has deposed that on 02.03.10

he arrested accused-appellant Ashok in the presence of

Lakhan Lal (PW-31) and Halke Bhaiya (PW-37) vide the arrest

memo Ex.P-51. On the same day, he quizzed him in the

presence of the aforesaid witnesses. He revealed amongst

other things that he had lifted a pair of silver payals from the

dead body of the deceased-prosecutrix. He also disclosed that

he had used the mobile phone with a SIM and he had kept

the aforesaid articles in an iron-box kept in one of the

bedrooms of his house. On the basis of this information, he

drew the disclosure statement Ex.P-41. On 05.03.10, he

recovered a mobile phone of the Nokia Company Model

No.1028 with SIM No.9575531130, one pair of silver payals

and soil smudged clothes from his house in the presence of

the aforesaid witnesses vide the seizure memo Ex.P-42. Both

the said witnesses have fully corroborated the statement

given by Dinesh Singh. All the three are put to lengthy cross-

examinations by learned counsel of accused-appellant Ashok.

However, learned counsel has failed to elicit any evidence in

favour of him. Thus, we hold their testimonies are reliable.

46. While considering circumstance No.2, we have

already held that Dinesh Singh had seized the deceased-

prosecutrix’s mobile phone from the possession of accused-
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appellant Kapil. As per call details Ex.P-81, on 14.02.10 SIM

of Mobile No.95755-31130, which is seized by Dinesh Singh

from the possession of accused-appellant Ashok, was used in

the mobile phone of IMEI No.35648-40028-49820, which

belonged to the deceased-prosecutrix. Thus, the call details

prove that accused-appellant Ashok had used the mobile

phone of the deceased-prosecutrix on 14.02.10, which

connects him to the crime.

47. As per the identification memo Ex.P-15, on 05.05.10

Kishore Shah (PW-33) had got one mobile phone and one pair

of silver payals identified by Sushila Bai (PW-27), the mother

of the deceased-prosecutrix, in the presence of Har Kishan

(PW-18) and Preetam Singh (PW-44). However, Kishore Shah

has denied in his evidence having held the identification

parade. Thereupon, the prosecution has declared him hostile.

However, Sushila Bai has deposed that in the identification

proceedings she identified a mobile phone and one pair of

silver payals amongst other things as those of her

daughter/the deceased-prosecutrix. Harkishan and Preetam

Singh have deposed that Sushila Bai had correctly identified

the aforesaid articles in their presence. There is nothing

adverse in the cross-examinations of Sushila Bai, Harkishan

and Preetam Singh to disbelieve their testimonies on the
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point. Hence, there is no adverse impact upon the

prosecution case because of Kishore Shah has been declared

hostile by the prosecution. Thus, we hold that Dinesh Singh

recovered the deceased-prosecutrix’s silver payals from the

possession of accused-appellant Ashok. We find that he has

not offered any explanation in his examination under Section

313 Cr.P.C. or otherwise as to how he got possession over

the deceased-prosecutrix’s payals. Consequently, it is proved

that he had removed the seized payals from the dead body of

the deceased-prosecutrix.

48. In conclusion, we hold that the prosecution has

proved circumstance No.3 beyond reasonable doubts that on

14.02.10 accused-appellant Ashok had the mobile phone of

the deceased-prosecutrix and her payals which were

recovered from his possession after her murder.

49. As per the seizure memo Ex.P-6, on 24.02.10, Rai

Singh Soni seized a mobile phone of the Sigmatel Company

with two SIMs of Mobile Nos. 96308-46291 and 97552-33915

of the Airtel on being produced by Ashok Raghuwanshi

(PW-39) in the presence of Ajab Singh (PW-10) and Santosh

(PW-15). However, they have denied the aforesaid seizure in

their examination-in-chief. Thereupon, they have been

declared hostile by the prosecution. On being cross-examined
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by the prosecution, Ashok Raghuwanshi in para 6 of his

evidence has admitted that SIM of Mobile No.96308-46291

has been issued in the name of his aunt Shanta Bai and he

found SIM of Mobile No.97552-33915 on a public way. It has

already been held that IMEI number of deceased Deepak’s

mobile phone is 35845-50206-59230. As per the call details

Ex.P-77 and Ex.P-80, the SIMs of aforesaid mobile numbers

were used in the mobile phone of aforesaid IMEI number

between 14.02.10 and 22.02.10, whereas deceased Deepak

had been murdered between 13.02.10 and 15.02.10. Thus, on

the basis of the aforesaid call details, it is held that aforesaid

witnesses namely Ashok Raghuwanshi, Ajab Singh and

Santosh have given false evidence as to seizure of the mobile

phone and the SIMs.

50. Dinesh Singh (PW-56) has testified that on 13.03.10

he arrested accused-appellant Ajju vide the arrest memo

Ex.P-12 in the presence of Sheikh Yakub (PW-16) and

Narsinghdas (not-examined). On the same day, he

interrogated him in the presence of Laxman Singh (PW-28)

and Halke Bhaiya (PW-37). He disclosed him that he had

removed from the dead body of deceased Deepak his mobile

phone, shoes and pocket diary. Thereafter, he pulled out the

installed SIM out of the mobile phone and later sold the
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mobile phone to Ashok Raghuwanshi (PW-39) at Rs.450/-, his

chappals got stuck in mud which he left near the scene of

crime and put on deceased Deepak’s shoes, which he, later,

threw in a field having standing wheat-crop. The filed is

nearby village Kheriya. Thereupon, he recorded his disclosure

statement Ex.P-35. On the same day, he recovered deceased

Deepak’s shoes at his instance in the presence of the

aforesaid witnesses from the said field owned by Pohap Singh

Raghuwanshi vide the seizure memo Ex.P-36.

51. We have already held that deceased Deepak’s mobile

phone was recovered from the possession of Ashok

Raghuwanshi (PW-39). Thus, we place reliance on that part

of accused-appellant Ajju’s disclosure statement wherein he

has stated to have sold deceased Deepak’s mobile phone to

Ashok Raghuwanshi (PW-39), which, in turn, proves that

accused-appellant Ajju had removed deceased Deepak’s

mobile phone from his dead body.

52. Laxman Singh and Halke Bhaiya have corroborated in

their evidence the aforesaid statement made by Dinesh Singh.

Learned counsel for accused-appellant Ajju has crossed them

at length. But, he has failed to discredit their evidence. Thus,

we hold that Dinesh Singh has seized deceased Deepak’s

shoes at the instance of accused-appellant Ajju.
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53. Basant (PW-32) has stated that on 21.03.10 he got

one pair of shoes, one belt, one purse and one mobile phone

identified by Meena Bai (PW-9), the wife of deceased Deepak,

by mixing up other similar articles in size and shape in the

presence of Laxman Singh (PW-28) and Dinesh Singh s/o

Chhotelal (PW-23). He further stated that Meena Bai had

identified the aforesaid articles amongst other articles as

those of her husband/deceased Deepak. He has proved the

identification memo Ex.P-5. His evidence is fully corroborated

by the testimonies of Meena Bai, Laxman Singh and Dinesh.

They are subjected to tedious cross-examinations on behalf

of accused-appellant Ajju. However, there is nothing in their

cross-examinations to disbelieve them. It is pertinent to

mention here that as per the seizure memos Ex.P-27 and

Ex.P-28 Rai Singh Soni seized a belt and a purse close to the

dead body of deceased Deepak, therefore, only the

identification of deceased Deepak’s shoes by his wife is

material. Thus, we hold that deceased Deepak’s shoes are

recovered at the instance of accused-appellant Ajju.

54. It may be mentioned here that Dinesh Singh could

not recover deceased Deepak’s pocket diary and accused-

appellant Ajju’s chappals which he has stated to have left at

the place of occurrence. In this regard, he has prepared
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search memos Ex.P-38 and Ex.P-39.

55. On the basis of aforesaid evidence, we hold that

prosecution has proved circumstance No.4 beyond

reasonable doubts that deceased Deepak’s mobile phone and

his shoes are recovered at the instance of accused-appellant

Ajju.

56. Dr. A.K. Agrawal (PW-46) has testified that on

16.02.10 he and Dr. Anita Sahu (not-examined) had jointly

performed the autopsy on the dead body of the deceased-

prosecutrix. At that time, they had prepared slides of her

vaginal swab/smear, cut off a few strains of her pubic hairs,

finger-nails of her both hands and removed her underwear

from her person and thereafter they sealed them in separate

packets and handed them over to Constable Kailash Chandra

(PW-38) for forensic tests. He further testified to have done

medico-legal examinations of accused-appellants namely

Kapil, Ashok and Ramjivan on 02.05.10 and accused-appellant

Ajju on 14.03.10. He found them capable of performing

sexual intercourse and gave reports Ex.P-69, Ex.P-72, Ex.P-73

and Ex.P-74 respectively. He further testified that he

prepared slides of their semen and cut off their some of pubic

hairs and sealed them in different packets and handed them

over to Head Constable Yashwant (PW-19). Both the
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aforesaid police constables have stated in their evidence to

have received sealed packets from Dr. A.K. Agrawal. Upon the

perusal of evidence appearing in the cross-examination of Dr.

A.K. Agrawal, we find that his aforesaid evidence remains

uncontroverted and unchallenged as he is not substantially

cross-examined on behalf of all the accused-appellants. Thus,

we hold that his evidence is reliable on the aforesaid points.

57. Head Constable Gopal Singh (PW-61) has stated in

his evidence that the seized articles had been sent to the FSL

Sagar for forensic tests vide the letter Ex.P-144. The letter

bears signature of Rajesh Raghuwanshi (PW-57). There is

nothing in his cross-examination to disbelieve his evidence.

Thus, we place reliance upon his evidence.

58. Dr. Pankaj Shrivsatava (PW-60) has deposed that he

has been posted as Scientific Officer in the FSL Sagar since

09.09.08. He further stated that he has been carrying out

DNA tests since March, 2007. Before carrying out the DNA

tests in the present case, he had tallied the impression of

sample-seal with those on sealed packets numbering 48 and

found the same. He also found the sealed packets were

intact. Thus, he had not found any evidence of tampering or

interpolation. He further deposed that in the course of DNA

tests, he extracted DNAs from the source materials namely
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deceased-prosecutrix’s underwear and slides of her vaginal

swab by using organic extraction and deferential organic

technique. He found that the source materials contain DNAs

of more than one person. Thereafter, with the same

technique he extracted DNAs of all accused-appellants namely

Ashok, Ramjivan, Kapil and Ajju from their semen-slides.

Upon comparison and matching, he found their DNAs on the

underwear and the vaginal swab of the deceased-prosecutrix.

After the completion of DNA tests, he prepared his report

Ex.P-143 on 16.12.10, which runs into 8 pages and each page

bears his signature.

59. On the perusal of cross-examination of Dr. Pankaj

Shrivastava, we find that general suggestions are given in his

cross-examination on behalf of the accused-appellants, which

he has denied. Not only that one of the advocate of the

accused-appellants has misconception to the extent that the

finger print expert and the DNA finger-printing expert are the

one and the same person and he has crossed Dr. Pankaj

Shrivastava as if he were a finger print expert. Not a single

question is put in his cross-examination as to his competency

in conducting DNA tests, his own credibility, accuracy of the

methodology or the procedure followed by him for DNA

profiling or possibility of the samples having been
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contaminated or tampered with. In the case of Sandeep Vs.

State of U.P. , (2012) 6 SCC 107, the apex court has held that

the burden of proving that the DNA report was vitiated for

any reason was on the accused. From a perusal of cross-

examination of this witness, we find that nothing is elicited

on behalf of the accused-appellants to cast a doubt either on

the reliability of the testimony of the witness or the

authenticity of the DNA report.

60. In the cases of Kamti Devi (supra), Santosh Kumar

Singh’s (supra) and Nandlal Wasudeo Badwaik (supra), the

Supreme Court has held that the DNA report is scientifically

accurate and exact science. In the cases of Santosh Kumar

Singh (supra) and Anil (supra), the Supreme Court has held

on the basis of the DNA reports that deceased victims were

subjected to rape and sodomy before being murdered.

61. In view of the aforesaid authorities, we place

absolute reliance upon the evidence of Dr. Pankaj Shrivastava

and his DNA report Ex.P-143. On the basis of the aforesaid

discussion, we hold that the prosecution has established

circumstance No.5 beyond reasonable doubts that the

deceased-prosecutrix was subjected to gang-rape by the

accused-appellants.

62. Dr. A.K. Agrawal (PW-46), in his evidence has stated
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that on 16.02.2010 he and Dr. Anita Sahu were posted as

Medical Officers at the Community Health Center, Pipariya.

Upon the requisitions of the Police Station Pipariya, on that

day he alone performed the autopsy on the dead body of

deceased Deepak and he and Dr. Anita Sahu jointly conducted

the post-mortem on the dead body of an unknown woman. He

has further stated that he has assessed the age of deceased

Deepak near-about 24 years and found following injuries on

his person.

External Injuries

(i) One contusion on the right parietal temporal

region of head, size 8×4 c.m.

(ii) One contusion on the left parietal region of

head, size 10×3 c.m.

(iii) One contusion on the posterior side of head, size

8×3 c.m.

(iv) One contusion on the forehead, size 7×2 c.m.

(v) One contusion on the back side of scapular

region of right shoulder, size 12×5 c.m.

(vi) One contusion over the scapula of left shoulder,

size 5×2 c.m.

(vii) One contusion over the frontal side of right hand

arm, size 10×4 c.m.

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(viii) One contusion (size is not mentioned in the

post-mortem report) over the outer side of right

forearm.

(ix) One contusion over the outer side of left arm,

size 5×4 c.m.

(x) One contusion over the outer side of left

forearm, size 5×2 c.m.

Internal Injuries

Right temporal bone of the head was

broken, blood clotted over the brain and its

tissues were torn.

Opinion – All the injuries were ante-mortem in

nature and caused by a hard and blunt object.

Breakage of the temporal bone of the head was

sufficient to cause death in ordinary course of

nature. The remaining injuries were simple in

nature. All the injuries were inflicted within six

hours before the death. Deceased Deepak died

of shock and hemorrhage. He died 48 to 72

hours before the post-mortem examination. The

nature of his death was homicidal. His post-

mortem report is Ex.P-66.

63. Dr. A.K. Agrawal has also stated that he and Dr.
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Anita Sahu had assessed the age of the deceased woman

near-about 24 years and found following injuries on her

person.

External Injuries

(i) Five abrasions caused by finger-nails over upper

region of the right breast, each of the abrasions

had the width about 1 c.m.

(ii) Five marks of finger-nails over lower region of

the right breast, the width of each of the marks

was 1 c.m.

(iii) Five brown marks of finger-nails over the right

side of the neck.

(iv) One ligature mark around the neck which was

below the thyroid cartilage, the width of ligature

mark was 1/2 c.m. and the margins of mark were

brown.

(v) One ears of wheat with stalk was partly found

into the vagina.

Injuries No. (i) to (iii) were ante-mortem

in nature caused by finger-nails. Injury No.(iv)

was caused by means of a piece of rope or wire.

All the injuries were caused within two hours

before the death.

(60)

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Internal Injuries

Both the lungs were swollen and red.

Blood was present in the left and the right

chambers of heart. The remaining internal

organs were red.

Opinion – The cause of death of deceased

woman was asphyxia due to strangulation. Signs

of sexual assaults were present indicating that

the deceased-woman was subjected to rape

before her death. The mode of her death was

homicidal. The deceased-woman died 48 to 72

hours prior to the post-mortem examination. Her

post-mortem report is Ex.P-67.

64. Upon the perusal of cross-examination of Dr. A.K.

Agrawal, we find that the defence has not challenged

seriously the mode of death of both the deceased. Hence, we

hold that the prosecution has proved circumstance No.6

beyond reasonable doubts that both the deceased have

suffered homicidal deaths.

65. It is a settled law in a case of murder based upon the

circumstantial evidence, the motive gains significance. We

have already held that the deceased-prosecutrix was gang-

raped and immediately thereafter she and deceased Deepak
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were murdered. Upon combining both the events, we also

hold that the motive behind the murders of both the

deceased by the accused-appellants was that they would not

lodge the police report of gang-rape and come forward to

give evidence against them in respect of the gang-rape in the

court of law.

66. It is pertinent to mention at this stage that we have

carefully considered the depositions of all the 61 prosecution

witnesses but discussed the statements of those prosecution

witnesses in the judgment whose evidence have relevancy

even remotely from the point of views of the prosecution or

the defence.

67. We have seriously considered the value of

unexhibited FSL report as argued thereon by the defence. As

per the report, the samples of soil collected from the scene

of crime and the stains of soil found on the clothes seized

from the possessions of the accused-appellants are different

in the composition and the texture. We do not attach any

importance to the report in view of the overwhelming

evidence against the accused-appellants being found reliable

by us after due discussion.

68. Before proceeding to examine the evidence of lone

defence witness Dr. Sudhir Jaswani (DW-1), we mention
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herein that Dr. G.P. Khare (PW-45) took the blood samples of

all the accused-appellants for DNA tests. Dr. Sudhir Jaswani

in his evidence has stated that the Government of Madhya

Pradesh had terminated the services of Dr. G.P. Khare on the

ground that his MBBS Degree was found forged in the

inquiry. Upon the said statement, it was argued by the

defence that Dr. G.P. Khare was not qualified for taking blood

samples of the accused-appellants for the DNA tests. DNA

analyst Dr. Pankaj Shrivastava (PW-60) has stated in para 10

of his evidence that he had not obtained DNA profiling of the

accused-appellants from their blood samples. Hence, we hold

that the evidence of this witness has no evidentiary value at

all.

69. Considering the cumulative effect of all the proved

circumstances, we hold the chain of circumstantial evidence

is complete that unerringly points that none other than the

accused-appellants had committed the crime. Therefore, the

trial court has not committed any error of law or facts in

convicting the accused appellants for the offences punishable

under Sections 376(2)(g), 302 r.w. 34 (two counts) and 201

IPC.

70. Now, we shall proceed to deal with whether the

imposition of death sentence upon the accused-appellants by
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the trial court under Section 302 IPC holds any justification?

71. The Supreme Court has evolved the doctrine of “the

rarest of the rare” case in awarding the death sentence

through its scores pronouncements. Hence, the first point

before us is whether the present case falls under the

category of the rarest of the rare case?

72. In the case of Machhi Singh (supra), the Supreme

Court has observed in para 39 of the decision that the

following questions may be asked and answered as a test to

determine the rarest of the rare case in which death sentence

can be inflicted.

(a) Is there something uncommon about the

crime which renders sentence of imprisonment for life

inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that

there is no alternative but to impose death sentence even

after according maximum weightage to the mitigating

circumstances which speak in favour of the offender?

73. In the case of Lehna Vs. State of Haryana , (2002) 3

SCC 76, the Supreme Court has defined in para 23 of the

decision that “the rarest of rare” case when the collective

conscience of the community is so shocked, that it will expect

the holders of the judicial power centre to inflict death
(64)
Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

penalty irrespective of their personal opinion as regards

desirability or otherwise of retaining death penalty, death

sentence can be awarded. The community may entertain such

sentiment in the following circumstances:-

“(1) When the murder is committed in an extremely
brutal, grotesque, diabolical, revolting, or dastardly
manner so as to arouse intense and extreme
indignation of the community.

(2) When the murder is committed for a motive
which evinces total depravity and meanness; e.g.
murder by hired assassin for money or reward; or
cold-blooded murder for gains of a person vis-a-vis
whom the murderer is in a dominating position or
in a position of trust; or murder is committed in the
course for betrayal of the motherland.

(3) When murder of a member of a Scheduled
Caste or minority community etc., is committed not
for personal reasons but in circumstances which
arouse social wrath, or in cases of ‘bride burning’
or ‘dowry deaths’ or when murder is committed in
order to remarry for the sake of extracting dowry
once again or to marry another woman on account
of infatuation.

(4) When the crime is enormous in proportion.
For instance when multiple murders, say of all or
almost all the members of a family or a large
number of persons of a particular caste,
community, or locality, are committed.

(5) When the victim of murder is an innocent child,
or a helpless woman or old or infirm person or a
person vis-a-vis whom the murderer is in a
dominating position, or a public figure generally
loved and respected by the community.”

74. The Supreme Court in the case of Mofil Khan Vs.

State of Jharkhand , (2015) 1 SCC 67, in para 64 of its
(65)
Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

decision has expressed its view upon the rarest of the rare

case as under:-

“The rarest of the rare case” exists when an
accused would be a menace, threat and antithetical
to harmony in the society. Especially in cases
where an accused does not act on provocation,
acting on the spur of the moment but meticulously
executes a deliberately planned crime in spite of
understanding the probable consequence of his act,
the death sentence may be the most appropriate
punishment.”

75. The Supreme Court has ruled in para 20 of its

judgment rendered in the case of Haresh Mohandas Rajput

Vs. State of Maharashtra , (2011) 12 SCC 56, thus:-

“The rarest of the rare case comes when a convict
would be menace and threat to the harmonious and
peaceful coexistence of the society. The crime may
be heinous or brutal but may not be in the category
of “the rarest of the rare case”.

76. The Supreme Court has laid down the test of the

rarest of the rare case in para 27 of its decision in the case

of Anil @ Anthony Arikswamy Joseph (supra) thus:-

“The rarest of the rare test depends upon the
perception of the society that is “society-centric”
and not “Judge-centric”, that is, whether the society
will approve the awarding of death sentence to
certain types of crimes or not. While applying that
test, the court has to look into the variety of factors
like society’s abhorrence, extreme indignation and
antipathy to certain types of crimes like sexual
assault and murder of minor girls, intellectually
challenged minor girls, minors suffering from
physical disability, old and infirm women, etc.”

77. In the case of Santosh Kumar Vs. State through
(66)
Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

C.B.I. , (2010) 9 SCC 747, the Supreme Court in para 98 has

explained the philosophy behind the rarest of the rare

principle thus:-

“Undoubtedly, the sentencing part is a difficult one
and often exercises the mind of the court but where
the option is between a life sentence and a death
sentence, the options are indeed extremely limited
and if the court itself feels some difficulty in
awarding one or the other, it is only appropriate
that the lesser sentence should be awarded. This is
the underlying philosophy behind “the rarest of the
rare” principle.”

78. In the case of Santosh Kumar Satishbhushan Bariyar

Vs. State of Maharashtra , (2009) 6 SCC 498, the apex Court

held that the nature, motive, and impact of crime, culpability,

quality of evidence, socio economic circumstances,

impossibility of rehabilitation are some of the factors, the

Court may take into consideration while dealing with such

cases.

79. In the case of Bachan Singh (supra), the Supreme

Court has laid down the following guidelines to be applied to

the facts to each individual case where the question of

imposition of death sentence arises:-

(i) The extreme penalty of death need not be inflicted
except in the gravest cases of extreme culpability.

(ii) Before opting for the death penalty, the
circumstances of the ‘offender’ also require to be
taken into consideration along with the circumstances
of the ‘crime’.

(iii) Life imprisonment is the rule and the death
(67)
Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

sentence is an exception. Death sentence must be
imposed only when life imprisonment appears to be
an altogether inadequate punishment having regard
to the relevant circumstances of the crime, and
provided, and only provided, the option to impose
sentence of imprisonment for life cannot be
conscientiously exercised having regard to the nature
and circumstances of the crime and all the relevant
circumstances.

(iv) A balance-sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances has to be accorded full
weightage and a just balance has to be struck
between the aggravating and the mitigating
circumstances before the option is exercised.

80. In the cases of Bachan Singh and Machhi Singh

(supra), the Supreme Court has enumerated following

aggravating and mitigating circumstances for consideration of

awarding the capital punishment:-

Aggravating circumstances (crime test)
(1) The offences relating to the commission
of heinous crimes like murder, rape, armed dacoity,
kidnapping, etc. by the accused with a prior record of
conviction for capital felony or offences committed by
the person having a substantial history of serious
assaults and criminal convictions.

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

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

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

(5) Hired killings.

(6) The offence was committed outrageously
(68)
Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

for want only while involving inhumane treatment and
torture to the victim.

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

(8) The murder or the offence was
committed, to prevent a person lawfully carrying out
his duty like arrest or custody in a place of lawful
confinement of himself or another. For instance,
murder is of a person who had acted in lawful
discharge of his duty under Section 43 Cr.P.C.

(9) When the crime is enormous in proportion
like making an attempt of murder of the entire family
or members of a particular community.

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

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

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

(13) The crime is committed so brutally that
it pricks or shocks not only the judicial conscience
but even the conscience of the society.

Mitigating circumstances (criminal test)
(1) The manner and circumstances in and
under which the offence was committed, for example,
extreme mental or emotional disturbance or extreme
provocation in contradistinction to all these situations
in normal course.

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

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

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

(5) The circumstances which, in normal
course of life, would render such a behaviour possible
and could have the effect of giving rise to mental
(69)
Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

imbalance in that given situation like persistent
harassment or, in fact, leading to such a peak of
human behaviour that, in the facts and circumstances
of the case, the accused believed that he was morally
justified in committing the offence.

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

(7) Where it is absolutely unsafe to rely upon
the testimony of a sole eyewitness though the
prosecution has brought home the guilt of the
accused.

However, we are aware that the Supreme Court in

the case of Shankar Kisanrao Khade vs. State of Maharashtra ,

(2013) 5 SCC 546, has stated that the application of

aggravating and mitigating circumstances needs a fresh look

in sentencing process. Aggravating circumstances relate to

the crime while mitigating circumstances relate to the

criminal. A balance-sheet cannot be drawn up for comparing

the two. The considerations for both are distinct and

unrelated. In the sentencing process both the crime and

criminal are equally important.

81. In the light of aforesaid legal position, we shall

consider whether the instant case falls within the category of

rarest of the rare case? We visualise that following are the

aggravating and the mitigating circumstances.
(70)

Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

Aggravating circumstances

(1) The accused-appellants first committed gang-rape

and thereafter they murdered the deceased-prosecutrix and

her companion deceased Deepak. They were quite young and

were murdered in a cruel and barbaric manner.

(2) In recent past many cases are reported in the

newspapers that rapist/rapists first commits/commit

rape/gang-rape and thereafter murder the victim-girl/woman

so that she would not depose against him/them in the courts.

Hence, there is an urgent need on the part of the courts to

send strong messages to such criminal(s) that the court

would deal with him/them with the severest punishment i.e.

capital punishment.

(3) The accused-appellants had not committed the

offence under the influence of alcohol or any other

intoxicating substance.

(4) The accused-appellants have absolutely no regard for

the chastity of a woman and the life and limb of a person.

Mitigating circumstances

(1) The prosecution has not produced any evidence

against any of the accused-appellants with regard to his

criminal antecedents. Hence, we may deduce that the

accused-appellants being the first offenders are not menace
(71)
Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

or threat to the society.

(2) All the accused-appellants are in the age group of 25

to 30 years and some of them are married.

(3) There is no evidence on record as to which accused-

appellant took a lead to instigate other accused-appellants to

commit the crime. Hence, it is not possible for us to identify

whose case among the accused-appellants falls in the

category of the rarest of the rare case.

(4) Evidence on record reveals that the deceased-

prosecutrix was unmarried girl, whereas deceased Deepak

was married man. The deceased-prosecutrix belonged to

Kahar caste, while deceased Deepak was of Kushwaha caste.

Moreover, they were permanent residents of different places.

The deceased-prosecutrix was a resident of Sohagpur,

whereas deceased Deepak was a resident of village

Kalmesera. Sushila Bai (PW-27), the mother of the deceased-

prosecutrix, has stated in her evidence that the deceased-

prosecutrix had left the house, saying that she was going to

Itarsi to meet her elder sister Pooja. Meena Bai (PW-9), the

wife of deceased Deepak, has stated in her evidence that her

husband left the house, saying that he was going to village

Bankhedi. Sushila Bai has also stated that deceased Deepak

gave a mobile phone to her deceased daughter on her
(72)
Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

birthday. The dead bodies of both the deceased were found

in the agricultural field close to each other. If these facts are

put together, it appears to us that both the deceased had

close physical intimacy. Hence, it may be that the accused-

appellants saw them in a compromising position which

aroused them and they committed the crime. Thus, it can be

said safely that the accused-appellants committed the

offence at the spur of moment.

Upon the comparison of the aggravating and the

mitigating circumstances, we find that the mitigating

circumstances have far outweighed the aggravating

circumstances.

82. The Supreme Court in the case of Shankar Kisanrao

Khede (supra) has considered a slew of cases, where the

victims were first subjected to rape/gang-rape/sodomy and

thereafter they were murdered by the accused/accused

persons, in which the Supreme Court has affirmed the death

sentences or converted the same into the life imprisonments.

83. The facts of the present case are similar to those of

the case of Ronny Vs. State of Maharashtra , (1998) 3 SCC

625,. In that case, three accused persons in the age group of

23 to 25 years had committed three murders and a gang-

rape. The Supreme Court commuted their death sentences to
(73)
Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

imprisonments for life on the ground that it was not possible

to identify whose case would fall in the category of “the

rarest of the rare” case. We have already stated under the

head of mitigating circumstance that it is not possible to

identify whose accused-appellant case falls in the category of

rarest of the rare case. Keeping in view the facts of case-law,

we are not inclined to affirm the capital punishment as

imposed by the learned Trial Judge upon the accused-

appellants.

84. Now, the point remains to be decided by us is what

will be appropriate sentence to be given to the accused-

appellants.

85. Taking the global view of the present case and

keeping in mind the law laid down in the aforenoted rulings,

we alter the capital punishment awarded to each of the

accused-appellants into the imprisonment for life for each of

the two counts under Section 302 r.w. 34 IPC.

86. In the result,

(1) The criminal reference of 1 of the year 2014 made by

the learned Trial Judge for confirmation of death sentences

awarded to the accused-appellants under Section 302 r.w. 34

IPC (two counts) is rejected. However, the order of

convictions under Sections 201, 376(2)(g) and 302 r.w. 34
(74)
Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

(two counts) IPC is upheld.

(2) All the appeals filed by the accused-appellants are

allowed to the extent that they would suffer life-

imprisonment for each count under Section 302 r.w. 34 IPC

instead of capital punishment.

(3) Each of the accused-appellants would suffer RI for 7

(seven) years under Section 201 IPC, RI for life under

Section 376(2)(g) IPC and RI for life for each of the two

counts under Section 302 r.w. 34 IPC. Keeping in view the

law laid down by the supreme court in the case of

Muthuramalingam and others Vs. State , represented by

Inspector of Police, (2016) 8 SCC 313, each of the accused-

appellants shall suffer first jail sentence under section 201

IPC and thereafter life imprisonments awarded to him under

sections 376(2)(g) and 302 r.w. 34 (two counts) IPC

“concurrently “.

(4) The fine sentences with default jail sentences as

imposed by the trial court upon each of the accused-

appellants shall remain as they are.

87. Before parting with this case, we would say a few

words upon the DNA test/profiling/finger-printing. It is a

recently developed impeccable scientific technique in

determining the identity of a person alleged to be involved in
(75)
Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

crime provided the crime-related DNA samples are properly

collected, not tampered with or not contaminated and the

DNA analyst correctly matches them with duly obtained DNA

sample from the person concerned. Now-a-days, the DNA

profiling is being increasingly used by the investigating

agencies to nab culprits especially in those cases where the

ocular evidence is not forthcoming. To safeguard the

interests of culprits, the persons who have collected crime-

related DNA samples and the DNA analysts are required to be

cross-examined effectively by their advocates. It is only

possible when they know the areas where the DNA samples

collectors may make irregularities in collecting them or the

DNA analysts may make mistakes at the time of matching the

DNA profilings. Keeping in view the aforesaid, we request the

State Bar Council of Madhya Pradesh to make efforts to

enlighten lawyers as to how the aforesaid persons can be

effectively crossed by arranging lectures of experts of the

DNA field and by making lawyers available exhaustive

reading-materials in this regard. We have come across that in

the United State of America if the prosecution case is entirely

based upon the DNA evidence, then it is mandatory for the

prosecuting concerned agency to get the DNA samples

analyzed by the two recognized laboratories without
(76)
Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14

disclosing each other the fact that the DNA samples are also

sent for analysis to another laboratory as well. If the reports

of both the laboratories are same, then the prosecution is

launched. Hence, we also request to the investigating

agencies to follow the suit in this regard.

88. Copies of this judgment be sent to the Bar Council of

Madhya Pradesh and the Principal Home Secretary to the

State Government of M.P. Bhopal for information and taking

steps in respect of recommendations made by us in para 87

of this judgment.

(J.K. Maheshwari) (Rajendra Mahajan)
Judge Judge

ac/-

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