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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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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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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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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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(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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Cr.A. Nos. 3538/14, 1075/15, 3512/14 3598/14Purvalia (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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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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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.
(47)
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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.
(52)
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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
(53)
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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.
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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(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
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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
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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/-