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Hunny @ Kakku vs The State Of Madhya Pradesh on 3 March, 2020

–1– CRRFC No.12/2019 CRA. No.8818/2019

HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
(D.B. HON’BLE JUSTICE SHRI S.C. SHARMA HON’BLE
JUSTICE SHRI SHAILENDRA SHUKLA)

CRRFC. No.12/2019
State of M.P.
Through – Police Station – Dwarkapuri,
Distt. Indore.
V/s.
Honey @ Kakku S/o. Rajesh Atwal,
Age – 23 years, Occup. Labour,
Permanent Address :- Atwal Mohalla,
Malhargarh, Plice Thana Malhargarh,
Distt. Mandsaur (M.P.)
Present Address – 3608, Sudamanagar,
Sector – E Police Thana Dwarkapuri,
Distt. Indore.
**********

Shri Shri R.S. Chhabra, learned Addl. Advocate General with
Shri L.S. Chandiramani, learned Public Prosecutor for the
Appellant/State.

Shri Avinash Sirpurkar, learned Senior Advocate with Shri B.
Patel, Advocate for the respondent, as amicus curiae.

**********
CRA. No.8818/2019
Honey @ Kakku S/o. Rajesh Atwal,
Age – 23 years, Occup. Labour,
Permanent Address :- Atwal Mohalla,
Malhargarh, Plice Thana Malhargarh,
Distt. Mandsaur (M.P.)
Present Address – 3608, Sudamanagar,
Sector – E Police Thana Dwarkapuri,
Distt. Indore.

V/s.

State of M.P.

Through – Police Station – Dwarkapuri,
Distt. Indore.

**********
Shri Avinash Sirpurkar, learned Senior Advocate with Shri B.
Patel, Advocate for the appellant (CRA.No.8818/2019) as
amicus curiae.

Shri R.S. Chhabra, learned Addl. Advocate General with Shri
L.S. Chandiramani, Advocate for the respondent/State.

**********
(JUDGMENT)
(Indore Dt.03.3.2020)

Per Shailendra Shukla, J:-

The present reference and appeal arise out of judgment

dated 30.9.2019, pronounced in Special Case No.2147/2018

by the 15th A.S.J. and Special Judge, Indore whereby,

–2– CRRFC No.12/2019 CRA. No.8818/2019

appellant – Honey @ Kakku has been convicted for the

offence punishable under Sections 363, 366, 376AB, 302,

201, 376A of IPC and under Section 5(n) read with Section 6

of POCSO Act. The accused has not been sentenced

separately under Section 5(n) read with Section 6 of POCSO

Act, in view of Section 42 of POCSO Act which provides for

sentencing under the provisions of IPC, if such provision

provides for stiffer sentence and therefore was sentenced

under Section 376AB in place of Section 5(n) read with

Section (6) of POCSO Act. Ultimately, the appellant has been

sentenced under various provisions as under :-

Provision of IPC Sentence

Section 363 IPC 5 years RI with fine of Rs.2000/-. In default

of payment of fine 2 months additional RI.

Section 366 of IPC 7 years RI with fine of Rs.3000/-. In default
of payment of fine 2 months additional RI.

Section 376 AB of Life Imprisonment till natural death with fine
IPC of Rs.4000/-. In default of payment of fine 3
months additional RI.

Section 5(n) read Life Imprisonment with fine of Rs.4000/-. In
with Section 6 of default of payment of fine 3 months
POCSO Act. additional RI.

Section 302 of IPC Life Imprisonment with fine of Rs.4000/-. In
default of payment of fine 3 months
additional RI.

201 of IPC 3 years RI with fine of Rs.2000/-. In default
of payment of fine 2 months additional RI.

376A of IPC Capital punishment with fine of Rs.5000/-.

In default of payment of fine 4 months
additional RI.

2. The prosecution story in short was that on 25.10.2018

Ashu (PW2) had left his daughter ‘A’ aged about 4 ½ years to

the coaching classes run by Anamika (PW7) at Sudama

Nagar, Indore at about 5.00 PM and when he came back to

fetch his daughter he was told by Anamika (PW7) that

–3– CRRFC No.12/2019 CRA. No.8818/2019

appellant – Honey has already taken his daughter half hour

back. Ashu (PW2) came back and he along with his wife

Nitika (PW1) searched for their daughter but when they

could not find her, a missing person report Ex.P/2 and FIR

Ex.P/1 were lodged. The FIR was registered as Crime

No.539/2018 under Section 363 of IPC. Next day, ie.,

26.10.2018 witness Premnath (PW12) discovered body of a

girl child at a spot where Premnath (PW12) had gone to

relieve himself. Premnath (PW12) gave an intimation, in

M.G. Road Police Station which is Ex.P/24. Police arrived at

the spot and prepared spot map Ex.P/25. The body of the girl

child was found in naked condition. Its hands and legs were

visible but trunk was covered with stones. Merg was

registered. On receiving such information, the scientific

officer Dr. B.L. Mandloi (PW30) arrived at the spot along

with photographer and prepared a report Ex.P/70 and

photographs of the spot and the deceased were taken. The

identification proceedings were initiated and the father Ashu

(PW2) identified the body as that of his daughter. The

identification memo was drawn and a panel of doctors

performed postmortem in order to determine the cause of

death. As per their report, the death was on account of

culpable homicide and the girl child was found to have been

sexually violated. Appellant – Honey was nabbed on the basis

of statements of Anamika (PW7). He was arrested on

29.10.2018 and his memorandum statements were recorded

on the basis of which his clothes, clothes of the deceased girl

child and the stone piece which was allegedly used by the

–4– CRRFC No.12/2019 CRA. No.8818/2019

appellant to bludgeon the girl child to death were recovered.

Further evidence was collected which involves CCTV

footages showing appellant along with the deceased girl child

at about the time when the deceased went missing. The

investigating agency thereafter went on to establish as to

whether the clothes of deceased contained DNAs of appellant

and whether other specimen of the deceased also contained

the DNAs of appellant. For this purpose the blood sample of

appellant was taken and its DNA was isolated in FSL and the

same was sought to be matched with DNAs present in the

source of the deceased and it was revealed that the clothes of

the deceased and her specimen samples show presence of

DNA of appellant. The age of the deceased was also

determined by the prosecution. Her school bag was also

recovered by the prosecution. After investigation charge sheet

was filed under the provisions of Section 363, 366, 366A,

367A, 376AB, 376E, 376(3), 302, 201 of IPC as also under

Section 3/4, 5(n) read with Section 6, 5(m) read with Section

6, 5i and 5t of POCSO Act. The presiding officer framed the

charges under the provisions of Section 363, 366, 376AB of

IPC, Section 5(n) read with Section 6, Section 5(m) of

POCSO Act, Section 302, 201 and Section 376A of IPC,

3. The accused abjured his guilt and pleaded innocence in

his accused statement and showed inclination to lead defence

evidence. However, no defence evidence has been led by

him.

4. The appellant in his appeal filed under Section 374(2)

of Cr.P.C has controverted the impugned judgment passed by

–5– CRRFC No.12/2019 CRA. No.8818/2019

the learned trial court and has stated that the appellant has no

nexus with the aforesaid alleged offence and he has been

falsely implicated, that there was a time gap between the last

seen and the recovery of dead body and on this ground itself

the judgment passed by the learned trial court deserves to be

set aside. It is further stated that even though the body of the

prosecutrix was recovered on 27.10.2018, the police while

seizing the school bag of the deceased girl child one day

earlier, ie., 26.10.2018 has written all these sections such as

Section 376, 302 of IPC etc. thereby pointing out that the

police already knew that the girl child had been raped and

murdered one day prior to the discovery of her body and this

itself shows false implication of appellant, that the motive for

killing the prosecutrix has not been established by the

investigators, that the prosecution story is not corroborated

with the medical evidence, that the prosecution did not prove

the memorandum statements and seizure memo of the

appellant, that the prosecution did not examine any

independent witness residing near the place of incident and

the material omissions and contradictions have not been

considered by the learned trial court while convicting the

appellant. It is stated that the witnesses are interested

witnesses and no independent witnesses have been examined

and on these grounds judgment of conviction and sentence

has been challenged and it is prayed that the appellant be

given the benefit of doubt and be set at liberty.

–6– CRRFC No.12/2019 CRA. No.8818/2019

5. The questions for consideration are whether in view of

the ground contained in the appeal, the appellant deserves to

be acquitted.

6. There are various stages of investigation which though

considered by the trial court will have to be perused and

deliberated upon by us in order to see as to whether the

conclusion arrived at by the trial court in respect of each of

these stages are appropriate or not.

7. The first question is whether the girl child was below

12 years or not. The prosecution has examined parents of the

girl child Ashu (PW2) and Nitika (PW1). Both of whom have

stated that the daughter was 4 ½ years old. Her date of birth

has been shown as 27.6.2014 by Nitika (PW1). The

prosecution has also examined Pratibha (PW6) who was the

principal of Prime Academy School, Vidur Nagar, Indore on

5.11.2018. She states that daughter ‘A’ of Ashu (PW2) was

got admitted in her school on 21.6.2018 in KG-I Class by her

father Ashu (PW2) only and the date of birth was recorded as

27.6.2014 and she has also brought scholar register along

with herself showing that at Serial No.A 1074, the date of

birth of ‘A’ has been recorded. The concerned entry is

Ex.P/14. The birth certificate is Ex.P/15. This witness further

states that the police had seized these documents from her

and had also sought the date of birth of the deceased in

writing from her which she had given to police on her letter

pad which is Ex.P/13. These documents have been seized by

investigating officer by Sunil Sharma (PW36) and the seizure

memo is Ex.P/16. Dr. A.K. Langewar (PW16) who had

–7– CRRFC No.12/2019 CRA. No.8818/2019

conducted the postmortem has also found the deceased to be

of 4 years old. There are no discrepancies or contradictions

found in the cross examination of Pratibha (PW6), Nitika

(PW1) and Ashu (PW2) regarding the age of the deceased ‘A’

at the time of incident and thus, it was rightly found proved

by the trial court that the deceased was below 12 years of age

at the time of incident.

8. The next question is whether the daughter ‘A’ of Nikita

(PW1) and Ashu (PW2) had gone missing and was taken out

of the lawful guardianship of her parents by the appellant.

Ashu (PW2) has stated that his daughter used to study in the

coaching class of Anamika Madam (PW7) and on

25.10.2018, he had left his daughter at the house of Anamika

Madam (PW7) at around 5.00 PM and time of coaching was

from 5.00 PM t o 7.00 PM and when he came to fetch his

daughter at 7.00 PM, he was told by Anamika Madam (PW7)

that ‘A’ had already been taken away by the appellant –

Honey at about 6.30 PM. Ashu (PW2) states that Anamika

knew appellant who used to bring his daughter to the

coaching classes and used to take her back also from the

classes. Anamika (PW7) has corroborated these statements of

Ashu (PW2). She states that on 25.10.2018, Ashu (PW2) had

brought his daughter ‘A’ to her house for coaching at 5.00 PM

and thereafter at 5.30 PM, appellant came to fetch the

daughter of Ashu (PW2) to which the witness refused saying

that the daughter had come just now and the appellant left her

house and then came again at 6.30 PM and at that point of

time Anamika sent the daughter of Ashu with appellant and

–8– CRRFC No.12/2019 CRA. No.8818/2019

thereafter Ashu (PW2) came at 7.00 PM and Anamika (PW7)

told him that appellant Honey had already taken his daughter.

This witness has been cross examined and asked question as

to why she did not call the parents of ‘A’ when appellant had

come to fetch her at 5.30 PM. The witness responds that

appellant – Honey usually would bring ‘A’ to the coaching

class and take her back as well and therefore, she did not

inform. The explanation of witness Anamika (PW7) have not

been found to be unreliable by the trial court and correctly so.

The question as to why Ashu (PW2) himself brought his

daughter to the coaching class of Anamika and came back to

fetch her as well when this task was usually performed by the

appellant only, has been answered by Nitika (PW1). She

states that the appellant earlier used to stay in her house only

and used to work with her husband and was also used to run

errands such as carrying her daughter to the coaching and

fetching her from there but on the morning of the incident,

ie., 25.10.2018, appellant – Honey had come in inebriated

condition and had cast an evil eye upon her which disturbed

the witness and the witness then told her husband to take the

appellant out of the house and then her husband took

appellant to the house of the sister of the appellant namely

Bhoomi. Although these statements have not been recorded

in FIR Ex.P/1 but as has already been laid down by the Apex

court in various judgments, FIR is not an encyclopedia of

facts and is barely a means to initiate investigation. The

prosecution has not examined the sister – Bhoomi of the

appellant. As far as Ashu (PW2) is concerned, he has also

–9– CRRFC No.12/2019 CRA. No.8818/2019

corroborated the statements of his wife Nitika (PW1). Ashu

(PW2) states that on 25.10.2018 appellant – Honey had come

to his house in inebriated condition and did not exhibit

hon’ble intentions towards his wife which trend was being

displayed by him since last 2-3 days and his wife told him

that the appellant should be made to leave the house and then

the witness took the appellant and left him at the house of his

sister – Bhoomi. The witness also states that prior to this the

appellant was residing in the house of the witness. As per this

witness also, the appellant used to perform house hold chores

which also involved carrying the daughter of witness to the

coaching class and school and bringing her back from there.

The reason for keeping appellant in the house of the witness

was that appellant belonged to the community of the witness

(both were Sweepers) and used to work with him because the

appellant had been turned out by his Aunt. These statements

of the appellant have not been controverted in cross

examination. In para 14, the witness has been cross –

examined as to whether the witness has received any

complaint against the appellant during the period appellant

stayed with him. The witness has given the answer in

negative.

9. Thus, from the evidence of Ashu (PW2) and Nitika

(PW1), it is proved that the reason for Ashu (PW2) to leave

his daughter at the coaching class and also coming back to

fetch her was due to the reason that the appellant had been

turned out by Ashu (PW2) due to dishonorable intention of

the appellant towards Nitika (PW1).

–10– CRRFC No.12/2019 CRA. No.8818/2019

10. Thus, it is proved that on the date of the incident there

was a bad blood created between the appellant and the

parents of the deceased ‘A’ and despite such circumstances,

the appellant had come to fetch ‘A’ not once but twice ie., at

5.30 P.M. and at 6.30 PM which again points out at some

ominous planning of appellant.

11. As already pointed out, when Ashu (PW2) came to

know that his daughter had been taken away by appellant and

after searching he could not found her, Ashu (PW2) and

Nitika (PW1) got panicked and lodged missing person report

as also FIR. The missing person report Ex.P/2 and FIR

Ex.P/1 were recorded by Ankit Sharma (PW33). A perusal of

FIR Ex.P/1 shows that it contains the name of the appellant

as person who had taken the daughter ‘A’ from the coaching

class. Thus from the very inception the appellant has become

the chief suspect. The missing person report carries the

photograph of minor daughter of Ashu. In cross examination

this witness admits that the missing person report has not

been typed by him but by computer operator and also admits

that missing persons report generally carries the scanned

photo of the person in question whereas in Ex.P/2 the original

passport photograph of the daughter ‘A’ has been affixed.

However, these discrepancies are very unsubstantial in

nature. It can be seen that the missing person report was

lodged soon after the daughter went missing and time record

in Ex.P/2 and Ex.P/1 is 9.17 PM and 9.23 PM on 25.10.2018

respectively. The statements of these witnesses have already

been corroborated by Anamika (PW7) whose statements are

–11– CRRFC No.12/2019 CRA. No.8818/2019

to the effect that the appellant had come to fetch ‘A’ at 5.30

PM and then at 6.30 PM and that on the second occasion ‘A’

was allowed to be taken by the appellant by the witness and

such statements have not been challenged and thus, it is

found proved that the appellant had taken ‘A’ out of lawful

guardianship of her parents on 25.10.2018 and thereby

kidnapped her. The fact of appellant taking ‘A’ from the

coaching classes has been verified by corroborative evidence

in the form of CCTV footage showing deceased ‘A’

accompanying appellant from near the coaching class in the

evening of 25.10.2018. The witness to this effect is Nilesh

Patidar (PW5) who had CCTV cameras installed in his office

situated above his house. During investigation it was found

that the CCTV footage has depicted appellant accompanying

‘A’ at the relevant point of time and the police sought these

CCTV footages from the witness and the witness asked

Shekhar Patidar (PW4) to prepare DVDR from DVD and the

CCTV footages were given to the investigating officer vide

seizure memo Ex.P/8 and Ex/P/9. Ex.P/10 is the certificate

under Section 65-B and CCTV footages were seized by Sunil

Sharma (IO) (PW36) whose signatures are on Ex.P/9 from ‘d’

to ‘d’. Witness Shekhar Patidar (PW4) though admits that the

DVDR was prepared from the pen drive in which the CCTV

footages were first uploaded from DVR and he also admits

that the aforesaid pen drive has not been seized. However, the

lapse on the part of the prosecution in not seizing the pen

drive has been admitted to be not major lapse by the trial

court in view of the evidence of Ashu (PW2) and Nitika

–12– CRRFC No.12/2019 CRA. No.8818/2019

(PW1) who, in their depositions have stated that they saw the

CCTV footage from the shop of Nilesh Patidar (PW5). Such

conclusion arrived at by the trial court is appropriate and calls

for no interference. The witnesses of CCTV footage have

ofcourse stated that the when the footage was recorded it was

evening time but Nilesh Patidar (PW5) denies the suggestions

that the faces of two persons shown in the CCTV footage

could not been seen. He states that on zooming one could see

the faces of both. He again is asked in para 7 that on zooming

also both the faces cannot be identified clearly. The witness

responds in affirmative but again states that one can make out

that it was the appellant and ‘A’ only. (Ashu PW2) and Nitika

(PW1) have also stated that they have identified both in

CCTV footage. Nitika (PW1) denies that she could not

identify both and no question in cross examination has been

posed to Ashu (PW2).

12. It is clear that while Nilesh Patidar (PW5) did not know

‘A’ and appellant, both Ashu (PW2) and Nitika (PW1) had

already known the appellant and ‘A’ was their daughter only.

Hence, they would have immediately identified these two

shown in CCTV footage which may not have been possible

for Nilesh Patidar (PW5). Hence, apart from previous

evidence of Ashu (PW2) and Anamika (PW7), appellant was

also seen along with ‘A’ in CCTV footages which

corroborates the prosecution story that Ashu (PW2) only had

kidnapped ‘A’.

–13– CRRFC No.12/2019 CRA. No.8818/2019

13. After the daughter ‘A’ of Ashu (PW2) went missing and

it was found that she was taken away by the accused Honey,

her search continued.

14. The next day ie., on 26.10.2018 the school bag which

was seen in the CCTV footage carried by the girl child was

discovered from Kanji compound. SHO police station

Dwarkapuri Ram Narayan Bhadoriya (PW34) states that he

had been searching for girl child along with her parents and

on 26.10.2018 when they reached Kanji compound they

found school bag of daughter ‘A’ which has been identified

by his father. Inside the bag there was handbook on which

name of ‘A’ was written and her photograph along with

photograph of her parents was also found in the handbook.

The seizure memo of the same was made in presence of Ashu

(PW2) and Nitin (PW8) which carry the signatures of the

witnesses. Nitin (PW8) has corroborated this statement and

has identified his signatures on Ex.P/12 from B to B part.

Ashu (PW2) has also identified his signatures of Ex.P/12

from A to A part. Ex.P/12 contains mention of Section 302,

376 and 201 of IPC whereas the body of the child was

discovered on 27.10.2018. The witness has been asked as to

how he could write these section on 26.10.2018 when there

was no knowledge that the girl child has been murdered. No

proper explanation has been afforded by the witness.

15. While Ram Narayan Bhadoriya (PW34) states in

examination – in – chief that the bag was discovered when he

along with the parents of the deceased were searching for

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daughter ‘A’ but in para 12 he states that father of ‘A’ had

called him on telephone and stated that he had found the bag.

16. Whereas Ram Narayan Bhadoriya (PW34) has stated in

cross examination that Ashu (PW2) informed him on phone

that the bag of ‘A’ has been found, Ashu (PW2) himself has

stated in para 18 that the bag of ‘A’ was found by the police

and then he was called. Nitin (PW8) also states that it was

police who had intimated Ashu (Pw2) that the bag was found.

17. Thus, there are discrepancies between the statements of

Ashu (PW2) and Ram Narayan Bhadoriya (PW34) as to

whether Ashu (PW2) first found the bag or police found the

bag in the first place. Further, it has not been explained as to

how seizure memo Ex.P/12 contained the particulars of

provision of IPC a day prior to the discovery of the body of

the deceased. Due to these discrepancies, evidence pertaining

to finding of bag of deceased is not found proved.

18. The next piece of evidence is the recovery of body of

the deceased. On 27.10.2018, Premnath (PW12) saw hands

and legs of a girl child, whose trunk was covered with stones.

Such sighting was a chance discovery by witness when he

had gone to relieve himself at a ‘Bogda’ which is a cave like

place below a culvert. Witness Premnath (PW12) states that

he intimated police at M.G. Road police station which is

Ex.P/24. This witness states that police thereafter came and

prepared spot map Ex.P/25 which also carries his signatures.

Ex. P/24 was recorded by ASI Jaiprakash Choubey (PW24).

Shri R.K. Chaturvedi (PW35) SHO, Indore states that it was

he who had prepared the spot map Ex. P/25. After recording

–15– CRRFC No.12/2019 CRA. No.8818/2019

of merg which is Ex.P/24, Suryaprakash Sharma (PW27)

who was posted as a Head Constable in control room at

Indore and was assigned the job of photography reached the

spot along with Dr. B.L. Mandloi (PW30) who was a

scientific officer posted at scene of crime mobile unit. This

witness states that he found a naked body of a girl child and

he took the photographs which are Ex.P/54 to Ex.P/57. He

has also exhibited the certificate under Section 65 of the

Evidence Act, which is Ex. P/58. Dr. B.L. Mandloi (PW30)

has corroborated these statements. He states that on

inspection of the dead body, he found that blood like liquid

had emitted from the private part of the deceased and a piece

of stone (‘Pharsi’) was lying besides the private part on which

a spot likely that of semen was visible. There was a deep gash

on the right cheek extending up to chin through which jaw

bone was visible. Blood also oozed out of nostrils. As per this

witness, signs of sexual assault followed by murder were

visible and an attempt had been made to hide the body with

stones. The report is Ex.P/70. This witness also prepared a

spot map Ex. P/71. He also drew the outlines of the ‘Bogda’

on a paper which is Ex.P/72. The instructions which he

passed on to S.I. were recorded vide Ex.P/73. This witness

further states that later on he prepared draft of the seized

items to be sent to FSL which is Ex. P/57. He also had

prepared a draft in relation to the items seized from the

accused for being sent to FSL as per Ex.P/74. This witness

admits that no blood trail was found on way to ‘Bogda’ No.19

where the body was found and no foot prints of animals were

–16– CRRFC No.12/2019 CRA. No.8818/2019

also found in the vicinity of the body. Such statements in

cross examination show that a child was done to death at

‘Bogda’ No.19 only as there was no blood trail.

19. What followed next was the identification of the body.

R.K. Chaturvedi (PW35) who was S.I. at M.G. Road on

27.10.2018 states that he issued Safina Form Ex.P/4 and the

body was identified by Ashu (PW2). Such identification

memo is Ex.P/3. Ashu (PW2) states that he identified the

body of his daughter and has appended his signature from A

to A part in Ex.P/3. His signatures on Safina Form which is in

fact the notice for identification ie., Ex.P/4 from A to A part

has also been admitted by Ashu (PW2).

20. R.K.Chaturvedi (PW35) states that a Naksha

Panchnama of the body intending to note injuries and status

of body was then carried out by him. This is Ex.P/5. In this

document the injuries on body as described by Dr. B.L.

Mandloi (PW30) have been noted. This witness further states

that he prepared an application for conducting postmortem of

the body which is Ex.P/34 which carries his signatures and

then the body was sent to M.Y. Hospital, Indore through

constable Ramkrishna (PW19). Ramkrishna (PW19) states

that on application Ex.P/34 his signatures are from A to A

part and he had brought the dead body to M.Y. Hospital as

per instructions received.

21. Dr. A.K. Lanjewar (PW16) states that he was posted in

MGM Medical College at Indore in Department of Forensic

Medicine as a guide on 27.10.2018 and on that day constable

Ramkrishna had brought the body of ‘A’ D/o. Ashu (PW2)

–17– CRRFC No.12/2019 CRA. No.8818/2019

aged 4 years for postmortem. The body was identified by

Ashu (PW2) and Ramkrishna (PW19). The postmortem was

conducted by a penal consisting of the witness Dr. S.K. Soni

(PW17) and Dr. Swati Bhargava. The outer examination

show that the rigor mortis had passed off and there was hypo-

stasis on the back of the body. There was coagulated blood on

the whole body and the face and soil particles were also

visible and red blood had oozed out of the nostrils and the

right eye had turned black. Following injuries were noted on

the body vide Ex.P/35 :-

“1. Contused lacerated wound of size 9.0 x 3.5
cm x bone deep present over right side of chin
situated 1.7 cm below the mid of lower lip
4.2 cm front of right ear.

2. Contused lacerated wound of size 1.5 x 1.2
cm present over root of nose situated 3.0 cm
below to the glabella, just below the mentioned
injury nasal cartilage was found crushed,
flattened exposed.

3. Contused lacerated wound of size 1.0 x 0.5
cm present over lateral side of upper eyelid of
right eye.

4. Reddish colour Contusion of size 6.4 x 6.0
cm present in and around right eye.

5. Contused abrasion of size 3.0 x 1.5. cm
present over right shoulder joint, situated 3.0
cm front of tip of right shoulder joint.

6. Contused abrasion of size 1.4 x 0.7. cm
present over antero-lateral aspect of right
shoulder joint, situated 3.5 cm from tip of right
shoulder joint.

7. Contused abrasion of size 3.5 x 1.7 cm
present over right side of chest over anterior
axillary line, situated 10.0 cm below to the
right axilla.

8. Contused abrasion of size 3.0 x 0.9. cm
present over extensor aspect of right forearm
situated 10.0 cm below right elbow joint.

9. Lacerated wound of size 5.7 x 1.6 cm x bone
deep present over postero-medial aspect of left
elbow joint.

10. Reddish abrasion of size 2.3 x 1.0 cm
present over anterior aspect of right side of
abdomen, situated just above to the right
anterior superior iliac spine.

11. Contused abrasion of size 4.0 x 2.2 cm
present over anterior aspect of left thigh
situated 4.0 cm above left knee joint.

–18– CRRFC No.12/2019 CRA. No.8818/2019

12. Multiple abrasion present over back of
chest on right side in an area of 5.5 x 4.0 cm of
size varying from 1.8. x 1.0 cm to 0.7 x 0.5 cm.

13. Reddish contused abrasion of size 4.5 x 0.8
cm placed obliquely situated 8.5. cm below to
the C6 vertebrae 5.5 cm right lateral to
midline.

14. Multiple scratch mark as abrasion (04 in
number) present over lateral aspect of right arm
nearly horizontal line in an area of 3.5 x 3.0 cm
varying from 0.5 to 0.1 cm to 0.3 to 0.1 cm
curvilinear in shape with concavity upward
appeared to be nail marks.

15. Contused abrasion of size 6.0 x 0.5 cm
present over right side of neck situated 5.0 cm
below to tip of right mastoid process.

16. Contused abrasion of size 2.0 x 1.0 cm
present over right side of neck situated 5.2. cm
anterior to the above mentioned injury no.15.

17. Scratch mark contused abrasion of size 0.7
x 0.1 cm present over left side of neck situated
2.7 cm below to tip of left mastoid process,
curvilinear in shape with concavity downward
obliquely appeared to be nail mark.

18. Scratch mark contused abrasion of size 0.8.
x 0.1 cm present over left side of neck situated
1.8 cm back to the above mentioned (injury
No.17) wound, curvilinear in shape with
concavity downward obliquely placed,
appeared to be nail mark.

19. Scratch mark contused abrasion of size 0.3
x 0.1 cm present over left side of neck situated
9.0 cm below to tip of left mastoid process,
horizontal idented mark appeared to be nail
mark.

20. Scratch mark contused abrasion of size 0.7
x 0.1 cm situated 7.4 cm below tot he mid of
chin, obliquely placed indented mark appeared
to be nail mark.

21. Lacerated wound of size 2.0 x 2.3 cm
present over left side of forehead situated 4.0
cm above lateral canthus of left eye,
underneath contusion of size 4.0 x 2.0 cm was
found.

22. Contusion of size 4.0 x 4.0 cm present over
left parietal region of scalp situated just left
lateral to midline.

23. Meninges was found tense congested, on
opening the meninges, SDH SAH present
all over brain at places. Brain was found soft.

24. Compound fracture of size 3.0 x 1.7 cm
present over left parieto-occipital junction
situated 4.2 cm left lateral to midline, effusion
of blood present surrounding the fracture.

25. Contusion of size 6.0 x 2.0 present over
right side of anterior peritoneal fold near
urinary bladder, surrounding perineal muscles
tissue was found ecchymosed.

–19– CRRFC No.12/2019 CRA. No.8818/2019

26. Multiple reddish colour abrasion present
over back in an area of 21.0 x 17.5 cm situated
10.0 cm below to the C6 vertebrae, on cut
ecchymosis was found.

27. Pale multiple abrasion present over buttock
region over upper part of sacrum in an area
of 25.0 x 19.0 cm, appeared to be ant bite
mark, margins of wounds and base found
irregular crenated at places. Injury was
postmortem in nature.

28. Pale abrasion of size 3.7 x 2.5 cm present
over left shoulder joint situated 3.0 cm below
to the tip of left shoulder joint. Injury was
postmortem in nature.

29. Pale abrasion of size 10.0 x 4.0 cm present
over left shoulder joint situated 8.5 cm below
to the tip of left shoulder joint. Injury was
postmortem in nature.

30. Pale lacerated wound of size 1.8 x 1.0 cm
present over antero-medial aspect of left
forearm situated 4.0 cm below to the left elbow
joint. Injury was postmortem in nature.”

22. Witness states that he also conducted examination of
vagina of the body and found that :-

“31. Vagina:- In whole of the vaginal opening
circumference reddish colour contusion of
size 4.0 x 2.0 cm was found with torned
hymen, edema was found surrounding the
tissue, contused abrasion with bruise present
over posterior fouchette and posterior
junction of labia majora and labia minora.
Tearing of skin present over right perineal
region. Vaginal opening was widened
patuluos, hymen was found torn and
destructed in posterior half remnant on
anterior part visible. Urethral orifice
displaced upward. Dust particle found
adherent all over the perineal region at
places.”

23. He also examined anus of the body and found that :-

“Anus:- In whole of circumference of anus
reddish colour contusion of size 3.6 x 3.0 cm
was found with torn anal sphincter. Tearing of
skin present over anal region, anal opening
was widened patulous, dust particle found
adherent all over the anal region at places.”

24. The witness states that he conducted internal

examination of the body and gave his opinion as follows :-

Opinion :-

–20– CRRFC No.12/2019 CRA. No.8818/2019

1. Death was due to shock and hemorrhage as a
result of head injury.

2. Evidence of penetrative sexual assault
present.

3. Evidence of throttling present.

4. injuries which are found on body of
deceased are homicidal in nature and can cause
death in ordinary course of nature.

5. Duration of death was within 24-48 hours
since post mortem examination.

25. The report Ex.P/35 carry the signatures of the members

of the penal doctors including that of the witness. His

evidence has been corroborated by doctor Sunil Kumar Soni

(PW17) who has made identical statements.

26. Dr. A.K. Lanjewar (PW16) states that the internal

organs of the body called viscera were preserved in two

bottles. The vaginal smear swab and 3 vaginal smear slides

were also preserved. The swab of the internal thighs were

also preserved for histological examination. These items were

sealed and labelled and given to constable Ramkrishna

(PW19). It is thus proved from the evidence of Dr. A.K.

Lanjewar (PW16) and Dr. Sunil Kumar Soni (PW17) opined

that death of daughter ‘A’ of Ashu (PW2) was a result of

culpable homicide. It was also proved that ‘A’ had been

subjected to penetrative sexual assault.

27. Ramkrishna (PW19) states that sealed and labelled

items were given to him by doctor at M.Y. Hospital which he

handed over to Head Constable Shri Brajmohan Singh Bais

(PW21) who drew the seizure memo Ex.P/35 which carries

his signature from A to A part. Brajmohan Singh Bais (PW21)

states that after seizure memo Ex. P/39, he had handed over

the same to ASI Malkhana. Sham Sunder Tiwari (PW31)

–21– CRRFC No.12/2019 CRA. No.8818/2019

states that while he was posted as Head constable in police

station Rajendra Nagar, he received a sealed packet

containing the internal organs of the deceased along with

letters Ex.P/74 and Ex.P/75 and he deposited these at FSL

Rau, Indore and receipt of which Ex.P/76 and Ex.P/77.

28. Having found proved that daughter ‘A’ was kidnapped

by the appellant and also having found proved that her death

was on account of culpable homicide and was subjected to

penetrative sexual assault, the next question was

identification of the person responsible for committing such

ghastly act. The needle of suspicion was already on the

appellant. The investigating agencies were collecting further

evidence and the agency came by such evidence against the

appellant in the form of last seen evidence, memorandum

statements of the appellant on the basis of which the clothes

of the daughter ‘A’ were recovered and lastly on the basis of

DNA examination and matching of body fluids of the

deceased with that of the appellant.

29. As far as last seen evidence is concerned, the witnesses

are Deepak Yadav (PW22) and Indu (PW11). Deepak Yadav

(PW22) states that on 25.10.2018 at about 6.30 PM while he

was carrying the passengers in his Magic vehicle, a person

accompanied by a small girl aged about 4 to 5 years boarded

his vehicle and these passengers disembarked at Municipality

at about 7.30 PM and he had charged them Rs.15. The

witness states that 4 to 5 days later, he read in the news-paper

about the incident of kidnapping and murder of a girl child.

He saw the photograph of the child and found that it was the

–22– CRRFC No.12/2019 CRA. No.8818/2019

same child who had boarded his vehicle along with the

person and the person’s photo in the news paper also was

same as that of the appellant. The witness has been shown the

appellant via video conferencing and has identified him to be

the same person. The witness has been shown the news paper

cutting Ex.P/41 and states that he had read this news paper

cutting as well. The witness has been cross examined and he

admits that on a given date he transports 100 to 150

passengers and he does not recollect the facial features of

such passengers. Regarding appellant he states that he had

seen him when the appellant was sitting in his vehicle and

further when appellant given him the fare.

30. It is true that in general a passenger is not likely to be

recognized by such a person who carries 100 to 150

passengers every day. However, the witness was able to

recollect the appellant and the deceased girl child as having

sat in his vehicle. When he saw the news-paper report 4 to 5

days afterwards, he could place them. It cannot be stated that

Deepak Yadav (PW22) is a planted witness. He also states

that he knows police posted at Dwarkapuri police station, but

he is not shown as pocket witness of police. There is no

reason to discredit this witness who is having no enmity with

the appellant.

31. Dinesh Sharma (PW3) states that he knows appellant –

Honey as appellant works as a sweeper at Surya Center

situated nearby his restaurant which he runs in the name of

Mauji Hot Food. He states that on 25.10.2018 at about 10.00

PM to 10.30 PM, appellant – Honey had come to his shop

–23– CRRFC No.12/2019 CRA. No.8818/2019

along with a girl child who was about 4 to 5 years old and

had purchased a ‘Samosa’ and then went towards

Municipality and 4 to 5 days later he read in news paper that

appellant – Honey had murdered a girl after committing rape

upon her and has thrown the body in the ‘Bogda’. He states

that police has come to his shop and had shown him the photo

of the girl child and he had recognized the child’s photo as the

same who had been brought by appellant – Honey to his

shop. The identification memo was drawn by police which is

Ex.P/8 which carries his signatures. The photograph Article

A/1 has also been identified by this witness. In cross

examination this witness states that he knows Honey as he

had come to his shop 4 to 5 times and he used to come alone

to his shop. He admits that he did not himself go to the police

station but police had come to his shop. He states that police

had been carrying the photograph of the girl child and were

asking persons about her whereabouts from number of

persons from the locality. Sunil Sharma (PW36) states in para

14 that he had shown the photograph of the girl child to

Dinesh Sharma (PW3) and Dinesh Sharma (PW3) after

seeing this photograph, told him that sweeper Honey had

come with a girl child to his shop on 25.10.2018 and the

photograph is of the same girl child. Witness states that

thereafter, he executed an identification memo in the presence

of Kapil and Manoj. Kapil Kadam (PW14) has corroborated

the statements of Sunil Sharma (PW36) and states that he has

appended his signatures on the Ex.P/8 from B to B part. In

para 16 he denies the suggestion that he and the police men

–24– CRRFC No.12/2019 CRA. No.8818/2019

never went to Mauji Food run by Dinesh Sharma (PW3) and

also denies that Ex.P/8 was made in police station.

32. There is no cause of suspicion on the statement of

Dinesh Sharma (PW3), Sunil Sharma (PW36) and Kapil

Kadam (PW14).

33. Thus, the trail of accused being seen with deceased

from 5.30. PM to 6.30 PM to 10.00 PM has been found

proved from the above statements. It was within specific

knowledge of the appellant as to what happened to girl child

‘A’. Thus, onus was upon him under Section 106 of the

Evidence Act.

34. Indu (PW11) states that she resides in a ‘Bogda’ along

with a husband Premnath and on the date of incident at about

11.00 PM, she saw appellant – Honey roaming with a girl

child aged about 4 to 4 ½ years. She asked the appellant as to

where he was roaming and appellant did not give any reply

and went towards the petrol pump. The witness states that

appellant – Honey used to sell socks at Sanjay Sethu Bridge

about a year and a half ago and therefore, she knows him. She

states that the child is body was found by her husband

Premnath (PW12). In her cross – examination she admits that

appellant – Honey used to work as sweeper but had started

selling socks about a year and half ago. She denies the

suggestion that it was dark in the night when she saw

appellant – Honey. She states that she could see in light. A

perusal of the evidence shows that she knew appellant from

before and her statements to have seen appellant and 4 to 5

years girl child in the night of the date of the incident has not

–25– CRRFC No.12/2019 CRA. No.8818/2019

been challenged successfully in cross examination. The

prosecution story is that somewhere in the intervening night

between 25.10.2018 and 26.10.2018 a girl child ‘A’ was done

to death. Witness Indu (PW11) can thus be credited as

witness of last seen. As already found that few hours earlier

Deepak Yadav (PW22) has also found the appellant and 4 to 5

years old girl child in his magic van as passengers and so has

Dinesh Sharma (PW3).

35. A sequence of evidence is found to be proved which

pertains to appellant moving along with the deceased girl

child from the evening of 25.10.2018.

36. As far as the evidence pertaining to memorandum and

seizure from memorandum of the appellant and seizure of

items in pursuance to such disclosure are concerned, Sunil

Sharma (PW36) is relevant witness. He states that on

28.10.2018, he was posted as SHO in police station Rajendra

Nagar and he was assigned to conduct investigation of the

case on 28.10.2018. The then Superintendent of Police

constituted a team to look into the investigation. He states

that accused – Honey was arrested by Shri R.N.S. Bhadoriya

and then he questioned the appellant in presence of the

witness Vikas Kadam and Nikhil Haade.

37. The accused – Honey was arrested by Ramnarayan

Singh Bhadoriya (PW34) whose arrest memo is Ex.P/35.

Sunil Sharma (PW36) states that Honey told him that on the

date of the incident the clothes which he had been wearing

were the same clothes he was wearing on the date of incident

also. His memorandum Ex.P/19 was recorded which carries

–26– CRRFC No.12/2019 CRA. No.8818/2019

signatures of Sunil Sharma (PW36) from B to B part. The

clothes of appellant – Honey were thereafter seized. The

seizure of T-shirt and pants carrying some stains is as per

seizure memo Ex.P/20 carrying the signatures of Sunil

Sharma (PW36) from B to B part and both Ex. P/19 and

Ex.P/20 also carries signatures of appellant – Honey. The

witness states that Honey revealed that he had committed the

offence and identified the place where such offence was

committed. The place was ‘Bogda’ No.9. On the basis of this

information a Tasdik Panchnama Ex.P/22 was prepared and a

spot map Ex.P/23 was also prepared by the witness. Witness

further states that thereafter appellant – Honey was sent for

medical examination to District Hospital at Indore and the

medical report Ex.P/18 was received thereafter. Witness

further states that the police remand of appellant – Honey was

sought from the court and on 30.10.2018 appellant – Honey

was questioned further. He thereafter gave information

regarding the place where the clothes of girl child were

hidden by him. The memorandum statements are Ex.P/27

carrying signatures by the witness and on the basis of such

memorandum a light pink color T-shirt, a black capri, a violet

underwear and a pair of sandals blue color were taken out

from below the stones and soil inside ‘Bogda’ No.9 by

appellant – Honey in presence of the witnesses. The same

was seized as per Ex.P/28 and the appellant signatures were

also taken by the witness. The witness Sunil Sharma (PW36)

states that he prepared the spot map of ‘Bogda’ No.9 which is

Ex.P/29. He thereafter wrote a letter to SDM Rau for

–27– CRRFC No.12/2019 CRA. No.8818/2019

conducting identification of the clothes of the deceased.

Witness Vikas Kadam (PW10) and Kapil Kadam (PW14)

have corroborated the statements of Sunil Sharma (PW36).

They have appended their signatures on Ex.P/27, Ex.P/28 and

Ex/P29. These witnesses have been extensively examined and

there are no statements in their cross examination which

would impeach their credibility. Sunil Sharma (PW36) has

also been cross examined. He states in para 45 that when

appellant – Honey took out his clothes, he was given other

clothes to wear. Although he admits that no bill showing

purchase of other clothes has been presented by him, but he

states that in seizure memo, it has been mentioned that he was

given other clothes to wear. This witness has already stated

that as per this witness the clothes of the deceased were

subjected to identification.

38. Manish Shrivastava (PW13) states that he, in his

capacity as Naib Tehsildar, had received a letter sent by SHO

Rajendra Nagar, Indore requesting for identification of

certain items and such letter is Ex.P/26. Witness states that

thereafter he conducted identification proceedings on

31.10.2018 at Prashaskiya Sankul Bhawan Indore in room

No.G-7 and in the identification proceedings, Ashu S/o. Gopi

Krishna has identified the clothes, ie., T-shirt, black capri,

underwear and sandals as those of his daughter. The

identification memo is Ex.P/7. In cross examination Manish

Shrivastava (PW13) states that he had called other clothes

from his Reader for the purpose of mixing them along with

the clothes sent to him. Ex.P/7 contains remark that seized

–28– CRRFC No.12/2019 CRA. No.8818/2019

clothes were mixed with similar looking other clothes and

sandals and that Ashu (PW2) had identified correctly by

picking up his daughter’s clothes. There are no discrepancies

in these statements of Manish Shrivastava (PW13). Ashu

(PW2) has also corroborated these statements and has also

admitted his signatures on Ex.P/7 at A to A part. In para 22,

he has been given a suggestion that the police had shown him

the clothes of his daughter even before the identification

proceedings were conducted. Such suggestions have been

denied by him.

39. It is thus found proved that on the basis of the

memorandum of the appellant the clothes of daughter ‘A’

hidden beneath soil and stones were recovered and this would

amount to discovery of fact under Section 27 of the Evidence

Act.

40. In the case of Pulukuri Kottaya vs King-Emperor, AIR

1947 PC 67, it has been observed as under :-

“It is fallacious to treat the ‘fact discovered’ within the
section as equivalent to the object produced; the fact
discovered embraces the place from which the object is
produced and the knowledge of the accused as to this,
and the information given must relate distinctly to this
fact. ”

41. As already stated, Sunil Sharma (PW36) had sent

appellant – Honey for his medical examination to the District

Hospital at Indore, Dr. Prabodh Joshi (PW32) stated that

while he was posted in District Hospital on 29.10.2018,

appellant – Honey S/o. Rajesh Atwal was brought before him

for medical examination by constable K.C. Sharma and he

conducted examination of appellant – Honey and found him

capable of performing intercourse. His pubic hairs were

–29– CRRFC No.12/2019 CRA. No.8818/2019

sealed and his underwear was also sealed. MLC report is

Ex.P/78. He admits that he could not collect the semen from

appellant as he has not been able to ejaculate and in cross

examination he states that a person affected with anxiety

neurosis may not be able to ejaculate.

42. From the evidence of this witness it is found proved

that the appellant was capable of performing sexual

intercourse. Sunil Sharma (PW36) states that on 30.10.2018,

S.P. West Indore sent a letter to ADG, Indore seeking

permission to conduct DNA examination of the appellant and

the permission was given vide letter which is Ex. P/91. The

witness states that thereafter the police remand of accused –

Honey was again taken and he was sent to M.Y. Hospital for

conducting DNA examination. Dr. R.S. Chouhan (PW15)

stated that on 1.1.2018, he was posted as CMO in M.Y.

Hospital at Indore and had received a letter sent by SHO

Rajendra Nagar for taking blood samples of accused Honey

Atwal for conducting his DNA examination. The letter’s

carbon copy is Ex.P/30. As per this witness, an OPD Ticket

was drawn (Ex.P/31) in order to conduct blood sampling of

accused – Honey who had been produced by the constable

Krishna Chandra and SHO Sunil Sharma. Thereafter 3 Ml.

Blood of accused – Honey was drawn and was collected in

E.D.T.A. Tube and Identification Form Ex.P/32 was filled up

which carried the photograph of accused – Honey, verified by

the witness, signed by the witnesses and thumb impressions

of both the hands of accused – Honey were taken on it along

with his signatures. The blood sample was then preserved in

–30– CRRFC No.12/2019 CRA. No.8818/2019

Ice Thermal Box and a seizure memo of the same was drawn

by SHO Sunil Sharma, which is Ex.P/33 which carries

signatures. The Identification Form Ex.P/32 also carries

signatures of Sunil Sharma (PW36) from F to F part so also

the seizure memo Ex.P/33, which shows that EDTA vial was

sealed.

43. Witness Pradeep Singh (PW26) states that while he was

posted as constable in police station Rajendra Nagar on

1.11.2018. T.I. Sunil Sharma (PW36) had taken accused –

Honey to M.Y. Hospital for conducting DNA sampling and in

hospital CMO Dr. Chouhan collected the blood sample of

accused – Honey and had prepared Identification Form

Ex.P/32 on which the signature of the witnesses are from E

to E part. This witness further states that the blood sample

was seized vide seizure memo Ex.P/33 and it was stored in

Thermocol Ice Box.

44. Sunil Sharma (PW36) has stated that DNA analysis

report was received from State Forensic Science Laboratory,

Sagar which is Ex.P/99 and the same was submitted before

the court vide letter of SHO Dwarkapuri Ex.P/98. This DNA

analysis report runs into 8 pages and the ultimate analysis is

recorded in last page which is as follows :-

(i) The DNA profile of male ‘Y’ chromosome

developed from the vaginal smear swab of the victim (Article

‘F’) was found to be consistent with DNA profile of male ‘Y’

chromosome found in blood sample of accused (Article ‘Q’).

(ii) The DNA profile of male ‘y’ chromosome

developed from the anal smear swab and slide of the victim

–31– CRRFC No.12/2019 CRA. No.8818/2019

(Article ‘G’) was found to be consistent with DNA profile of

male ‘Y’ chromosome found in blood sample of accused

(Article ‘Q’).

(iii) The DNA profile of male ‘y’ chromosome

developed from the thigh smear swab and slide of the victim

(Article ‘H’) was found to be consistent with DNA profile of

male ‘Y’ chromosome found in blood sample of accused

(Article ‘Q’).

(iv) The DNA profile of male ‘Y’ chromosome

developed from the underwear smear swab and slide of the

victim (Article ‘P’) was found to be consistent with DNA

profile of male ‘Y’ chromosome found in blood sample of

accused (Article ‘Q’).

(v) The autosomal STR DNA profile was found to

be done in victim clothes and blood sample of the accused.

(vi) The autosomal STR DNA profile was found to be

same in the T-shirt of accused (‘L’) and victim source (Article

‘R’).

(vii) The DNA profile of victim developed from the T-

shirt of the appellant matched with DNA profile of victim

developed from the blood soil.

45. Summarily speaking, the vaginal smear swab, anal

smear swab, thigh swab and underwear swab of the victim

contained DNA of a male and the DNA profile of ‘Y’

chromosome found in these items were found to have

matched with the DNA profile of the appellant drawn from

his blood sample. Thus, the DNA profile of the appellant was

found on the clothes of the victim and that the DNA profile of

–32– CRRFC No.12/2019 CRA. No.8818/2019

the victim found on the T-shirt of the accused had matched

with the DNA profile of the blood soil.

46. The Hon’ble Supreme Court in the case of Mukesh

Anr. vs. State for NCT of Delhi Ors., 2017 (6) SCC 1,

discussed about the efficacy of DNA examination has quoted a

judgment of the Supreme Court of United States in the

following para :-

“212. After the above judgment, the DNA Test has
been frequently applied in the United States of
America. In District Attorney’s Office for the Third
Judicial District et al. v. William G. Osborne[86], Chief
Justice Roberts of the Supreme Court of United States,
while referring to the DNA Test, stated as follows: –

“DNA testing has an unparalleled ability both to
exonerate the wrongly convicted and to identify
the guilty. It has the potential to significantly
improve both the criminal justice system and
police investigative practices. The Federal
Government and the States have recognized this,
and have developed special approaches to ensure
that this evidentiary tool can be effectively
incorporated into established criminal procedure-
usually but not always through legislation.
… … ….

Modern DNA testing can provide powerful new
evidence unlike anything known before. Since its
first use in criminal investigations in the mid-
1980s, there have been several major advances in
DNA technology, culminating in STR technology.
It is now often possible to determine whether a
biological tissue matches a suspect with near
certainty. While of course many criminal trials
proceed without any forensic and scientific testing
at all, there is no technology comparable to DNA
testing for matching tissues when such evidence is
at issue.”

47. The Apex court in the case of Mukesh Anr. (supra)

has further observed as under :-

“213. DNA technology as a part of Forensic
Science and scientific discipline not only
provides guidance to investigation but also
supplies the Court accrued information about
the tending features of identification of
criminals. The recent advancement in modern
biological research has regularized Forensic
Science resulting in radical help in the
administration of justice. In our country also
like several other developed and developing
countries, DNA evidence is being increasingly

–33– CRRFC No.12/2019 CRA. No.8818/2019

relied upon by courts. After the amendment in
the Criminal Procedure Code by the insertion of
Section 53A by Act 25 of 2005, DNA profiling
has now become a part of the statutory scheme.
Section 53A relates to the examination of a
person accused of rape by a medical
practitioner.”

48. As far as the FSL report is concerned, Rama Shankar

Singh Tomar (PW28) has stated that while posted as

constable in police station – Dwarkapuri, he had deposited

various articles concerning Crime No.539/2018 registered in

police station – Dwarkapuri draft copy of which is Ex.P/59

and he had been given receipt Ex.P/60 and Ex.P/61 from FSL

Sagar. This witness further submits that he deposited these

receipts in police station and his Roznamchasana is Ex.P/82.

Witness Sunil Sharma (PW36) submits that the report which

has been received from FSL Sagar was received on

30.11.2018 and this report is Ex.P/81. In this report, it has

been found that Article F/1, which is the slide drawn from the

victim’s fluids, contained sperms and the same was the

situation in the underwear of the deceased which is Article P.

The piece of stone which is Article D was also found to have

contained human blood. This FSL report is Report

No.1776/18. The same witness states that he also received

analysis report from FSL Rau, Indore on 26.12.2018 which is

report No.269/18 which is Ex.P/83. As per this report, in the

underwear of accused – Honey, semen and sperms were

found.

49. Thus, FSL report Ex.P/81 substantiates the evidence of

doctor Dr. A.K. Lanjewar (PW16) who had stated that the

deceased was subjected to sexual assault. The DNA report

–34– CRRFC No.12/2019 CRA. No.8818/2019

conclusively proves that it was the accused only who had

committed penetrated sexual assault on the deceased.

50. In this case, which is based on circumstantial evidence,

following circumstances have been found proved against the

appellant :-

(i) Existence of motive :- On the date of incident itself

there was a spat between the parents of the deceased ‘A’ and

the accused – Honey on account of behavioral complaint

against the appellant and the appellant was turned out by

complainant from his house.

(ii) It has been found proved that the appellant went to

the coaching class where ‘A’ used to study and took her away

from the coaching class at 6.30 PM and the evidence of

Anamika (PW7) and CCTV footage is important in this

regard.

(iii) Appellant and ‘A’ were seen together at 6.30 PM,

10.00 PM and 11.00 PM by witnesses which has been found

proved.

(iv) The onus under Section 106 of Evidence Act was

not discharged by the accused who needed to explain the

whereabouts of ‘A’ whom he had accompanied from 6.30 PM

onwards on 25.10.2018.

(v) The body of the deceased was found absolutely

naked and the clothes of daughter ‘A’ identified by her father

were recovered at the instance of appellant which amounts to

discovery of fact.

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(vi) The blood stained stone was also recovered at the

instance of the appellant which as per FSL report was found

to have contained human blood.

(ix) The deceased was found to been raped and the

DNA of her fluids containing male ‘Y’ chromosomes were

found to be those of the appellant.

(x) From the clothes of the appellant, DNA of deceased

were isolated and these DNA also matched with blood soil at

the spot where the body of ‘A’ was found. All these

circumstantial evidence have rightly been found to be

forming a complete chain which only pointed to the guilt of

the accused.

51. The judgment passed in the case of Sharad Birdhi

Chand Sarda vs. State of Maharashtra, 1984 (4) SCC 116 is

relevant for the purpose. It has also been found that the

accused in his statement recorded under Section 313 of

Cr.P.C has barely stated “do not know” to number of

questions regarding which he had specific knowledge. In the

case of Nagraj vs. State of (Tamil Nadu); (2015) 4 SCC 739,

the Supreme Court has observed that if the accused give

evasive and untrustworthy answers under Section 313 of

Cr.P.C then it would be a factor indicating his guilt. In the

case of Munna Kumar Upadhyay @ Munna Upadhyay vs.

State of Andhra Pradesh; AIR 2012 SC 2470, it has been laid

down that false denial made by the accused of established

facts can be used as incriminating evidence against him.

Thus, the manner in which the appellant has answered the

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questions post to him under Section 313 of Cr.P.C also raises

adverse inference against him.

52. It has already been found that the death of deceased ‘A’

was on account of culpable homicide. Dr. A.K. Langewar

(PW16) has found that the injuries were sufficient in the

ordinary course of nature to cause death. The case squarely

falls in the purview of “Murder” as defined in Section 300 of

IPC. Consequently, the offence under Section 302 of IPC is

found to be proved beyond reasonable doubt.

53. Section 5(n) read with Section 6 of POCSO Act

reads as under :-

“Section 5 (n) :- whoever being a relative of the
child through blood or adoption or marriage or
guardianship or in foster care or having a
domestic relationship with a parent of the child or
who is living in the same or shared household
with the child, commits penetrative sexual
assault on such child; or”

Section 6. – Punishment for aggravated
penetrative sexual assault. – Whoever, commits
aggravated penetrative sexual assault, shall be
punished with rigorous imprisonment for a term
which shall not be less than ten years but which
may extend to imprisonment for life and shall
also be liable to fine.”

54. In view of the evidence found proved the ingredients of

the aforesaid sections are also attracted and thus offence is

also found proved.

55. Section 376A of IPC has already been quoted. Section

376AB of IPC is reproduced as under :-

Section 376 AB of IPC :- Whoever, commits rape on
a woman under twelve years of age shall be punished
with rigorous imprisonment for a term which shall not
be less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment
for the remainder of that person’s natural life, and
with fine or with death.”

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56. All the ingredients of the aforesaid section is also found

to be proved in the present case.

57. Thus, after due consideration of the evidence and the

material on record, it is found that the trial court had rightly

convicted the appellant under Sections 363, 366, 376 AB,

302, 201 and 376A of IPC and under Sections 5(n) read with

Section 6 of POCSO Act.

58. Coming to the question of reference send under Section

366 of Cr.P.C, it is to be seen by this court as to whether the

death sentence imposed upon the appellant was proper in the

given circumstances or not. It has already been seen that the

punishment of death of sentence has to be given only in rarest

of rare circumstances.

59. In the case of Bachan Singh vs. State of Punjab, 1980

(2) SCC 684, the Apex Court has observed as under :-

“(a) The normal rule is that the offence of
murder shall be punished with the sentence of
life imprisonment. The court can depart from
that rule and impose the sentence of death only
if there are special reasons for doing so. Such
reasons must be recorded in writing before
imposing the death sentence.

(b) While considering the question of sentence to
be imposed for the offence of murder under
Section 302 of the Penal Code, the court must
have regard to every relevant circumstance
relating to the crime as well as the criminal. If
the court finds, but not otherwise, that the
offence is of an exceptionally depraved and
heinous character and constitutes, on account of
its design and the manner of its execution, a
source of grave danger to the society at large, the
court may impose the death sentence.”

60. The aggravating circumstances suggested by the

counsel read as follows:

“Aggravating circumstances: A court may,
however, in the following cases impose the

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penalty of death in its discretion:

(a) if the murder has been committed after
previous planning and involves extreme
brutality; or

(b) if the murder involves exceptional
depravity; or

(c) if the murder is of a member of any of
the armed forces of the Union or of a
member of any police force or of any
public servant and was committed–

(i) while such member or public servant
was on duty; or

(ii) in consequence of anything done or
attempted to be done by such member or
public servant in the lawful discharge of
his duty as such member or public servant
whether at the time of murder he was such
member or public servant, as the case may
be, or had ceased to be such member or
public servant; or

(d) if the murder is of a person who had
acted in the lawful discharge of his duty
under Section 43 of the Code of Criminal
Procedure, 1973, or who had rendered
assistance to a Magistrate or a police
officer demanding his aid or requiring his
assistance under Section 37 and Section
129 of the said Code.” After reproducing
the same, the Court opined:

“Stated broadly, there can be no objection
to the acceptance of these indicators but as
we have indicated already, we would
prefer not to fetter judicial discretion by
attempting to make an exhaustive
enumeration one way or the other.”

61. Thereafter, the Court referred to the suggestions

pertaining to mitigating circumstances:

“Mitigating circumstances.–In the exercise of
its discretion in the above cases, the court shall
take into account the following circumstances:
(1) That the offence was committed under the
influence of extreme mental or emotional
disturbance.

(2) The age of the accused. If the accused is
young or old, he shall not be sentenced to
death.

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(3) The probability that the accused would not
commit criminal acts of violence as would
constitute a continuing threat to society.

(4) The probability that the accused can be
reformed and rehabilitated. The State shall by
evidence prove that the accused does not
satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the
case the accused believed that he was morally
justified in committing the offence.

(6) That the accused acted under the duress or
domination of another person.

(7) That the condition of the accused showed
that he was mentally defective and that the said
defect impaired his capacity to appreciate the
criminality of his conduct.” The Court then
observed:

“We will do no more than to say that these are
undoubtedly relevant circumstances and must
be given great weight in the determination of
sentence.”

In the said case, the Court has also held thus:

“It is, therefore, imperative to voice the
concern that courts, aided by the broad
illustrative guide-lines indicated by us, will
discharge the onerous function with evermore
scrupulous care and humane concern,
directed along the highroad of legislative
policy outlined in Section 354(3) viz. that for
persons convicted of murder, life
imprisonment is the rule and death sentence
an exception. A real and abiding concern for
the dignity of human life postulates
resistance to taking a life through law’s
instrumentality. That ought not to be done
save in the rarest of rare cases when the
alternative option is unquestionably
foreclosed.”

62. The aforesaid case pertained to circumstances where

murder had been committed and therefore, in tabulating

aggravating circumstances, the word “murder” has been used.

However, in the present case, only life imprisonment has been

imposed by the Trial Court while convicting the appellant

under Section 302 of IPC. Thus, clearly, the Trial Court has not

found it to be rarest of rare case in respect of charge under

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Section 302 of IPC. The Court has found it to be rarest of rare

case while imposing sentence under Section 376A of IPC. It is

pertinent to note that under Section 376A of IPC, sentence of

death can be imposed even though murder has not been

committed. It would be appropriate to reproduce Section 376A

of IPC as under :-

376A Punishment for causing death or
resulting in persistent vegetative state of
victim — Whoever, commits an offence
punishable under sub-section (l) or
sub¬section (2) of section 376 and in the
course of such commission inflicts an injury
which causes the death of the woman or
causes the woman to be in a persistent
vegetative state, shall be punished with
rigorous imprisonment for a term which shall
not be less than twenty years, but which may
extend to imprisonment for life, which shall
mean imprisonment for the remainder of that
person’s natural life, or with death.

63. The Three-Judge Bench judgment of the Apex Court in

the case of Ravishankar @ Baba Vishwakarma vs. State of

Madhya Pradesh, 2019 (4) JLJ 258 has observed as under :-

“………… a bare perusal of Section 376A of
IPC shows that only factum of death of the
victim during the offence of rape is required
and such death need not be with any guilty
intention or be a natural consequence of the act
of rape only. It is worded broadly enough to
include death by any act committed by the
accused if done contemporaneously with the
crime of rape. Any other interpretation would
defeat the object of ensuring safety of women
and would perpetuate the earlier loophole of
the rapists claiming lack of intention to cause
death to seek a reduced charge under Section
304 of I.P.C. as noted in the Report of the
Committee on Amendments to Criminal Law,
headed by Justice J.S. Verma, former Chief
Justice of India……..”

64. Thus, even though murder may not have been proved,

sentence of death can still be imposed if the impugned act falls

under Section 376A of IPC. A bare perusal of this provision

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itself shows that sentence of death has been mentioned in the

last, which is preceded by sentence of “not less than 20 years”,

followed by “imprisonment for life” which shall mean

“imprisonment for the remaining part of person’s natural life”

and lastly with “death”. The principles of “rarest of rare” for

awarding death sentence as evolved in Bachan Singh’s case

would be attracted in respect of Section 376A of IPC as well.

65. The case of Bachan Singh (supra) was followed by yet

another important judgement of Macchi Singh vs. State of

Punjab, 1983 (1) SCC 470. The law laid down in Macchi

Singh (supra) has been succinctly reflected upon by the Apex

Court in the much talked about Nirbhaya case judgement,

which is titled as Mukesh another vs. State (NCT of Delhi)

others; 2017 (6) SCC 1, as under :-

335. In the case of Machhi Singh (supra), a
three-Judge Bench has explained the concept of
‘rarest of rare’ by observing thus:

“The reasons why the community as a
whole does not endorse the humanistic
approach reflected in ‘death sentence-in-no-
case’ doctrine are not far to seek. In the first
place, the very humanistic edifice is
constructed on the foundation of ‘reverence for
life’ principle. When a member of the
community violates this very principle by
killing another member, the society may not
feel itself bound by the shackles of this
doctrine. Secondly, it has to be realised that
every member of the community is able to live
with safety without his or her own life being
endangered because of the protective arm of
the community and on account of the rule of
law enforced by it. The very existence of the
rule of law and the fear of being brought to
book operates as a deterrent for those who have
no scruples in killing others if it suits their
ends. Every member of the community owes a
debt to the community for this protection.”

336. Thereafter, the Court has adverted to the
aspects of the feeling of the community and its

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desire for self-preservation and opined that the
community may well withdraw the protection
by sanctioning the death penalty. What has
been ruled in this regard is worth reproducing:
“But the community will not do so in every
case. It may do so ‘in the rarest of rare cases’
when its collective conscience is so shocked
that it will expect the holders of the judicial
power centre to inflict death penalty
irrespective of their personal opinion as regards
desirability or otherwise of retaining death
penalty.”

337. It is apt to state here that in the said
case, stress was laid on certain aspects,
namely, the manner of commission of the
murder, the motive for commission of the
murder, anti-social or socially abhorrent
nature of the crime, magnitude of the crime
and personality of the victim of murder.

338. After so enumerating, the
propositions that emerged from Bachan
Singh (supra) were culled out which are as
follows:

“The following propositions emerge from
Bachan Singh case:

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

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

(iii) Life imprisonment is the rule and death
sentence is an exception. In other words
death sentence must be imposed only when
life imprisonment appears to be an
altogether inadequate punishment having
regard to the relevant circumstances of the
crime, and provided, and only provided, the
option to impose sentence of imprisonment
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
have 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.”

–43– CRRFC No.12/2019 CRA. No.8818/2019

339. The three-Judge Bench further
opined that to apply the said guidelines, the
following questions are required to be
answered: “(a) Is there something
uncommon about the crime which renders
sentence of imprisonment for life inadequate
and calls for a death sentence?

(b) Are the circumstances of the crime such
that there is no alternative but to impose
death sentence even after according
maximum weightage to the mitigating
circumstances which speak in favour of the
offender?” In the said case, the Court upheld
the extreme penalty of death in respect of
three accused persons.

66. The Apex Court, in the Nirbhaya’s case thereafter

referred to yet another judgement of the Apex Court in the case

of Haresh Mohandas Rajput vs. State of Maharashtra, 129

SC Reported 2308 in the following manner :-

340. “while dealing with the situation
where the death sentence is warranted,
referred to the guidelines laid down in
Bachan Singh (supra) and the principles
culled out in Machhi Singh (supra) and
opined as follows:

“19. In Machhi Singh v. State of Punjab
this Court expanded the “rarest of rare”
formulation beyond the aggravating
factors listed in Bachan Singh to cases
where the “collective conscience” of the
community is so shocked that it will
expect the holders of the judicial power
centre to inflict the death penalty
irrespective of their personal opinion as
regards desirability or otherwise of
retaining the death penalty, such a penalty
can be inflicted. But the Bench in this case
underlined that full weightage must be
accorded to the mitigating circumstances
in a case and a just balance had to be
struck between the aggravating and the
mitigating circumstances.” After so
stating, the Court ruled thus:

“20. The rarest of the rare case” comes
when a convict would be a 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”.
There must be no reason to believe that the

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accused cannot be reformed or
rehabilitated and that he is likely to
continue criminal acts of violence as
would constitute a continuing threat to the
society. The accused may be a menace to
the society and would continue to be so,
threatening its peaceful and harmonious
coexistence. The manner in which the
crime is committed must be such that it
may result in intense and extreme
indignation of the community and shock
the collective conscience of the society.
Where an accused does not act on any
spur-of-the- moment provocation and
indulges himself in a deliberately planned
crime and [pic]meticulously executes it,
the death sentence may be the most
appropriate punishment for such a ghastly
crime. The death sentence may be
warranted where the victims are innocent
children and helpless women. Thus, in
case the crime is committed in a most
cruel and inhuman manner which is an
extremely brutal, grotesque, diabolical,
revolting and dastardly manner, where his
act affects the entire moral fibre of the
society e.g. crime committed for power or
political ambition or indulging in
organised criminal activities, death
sentence should be awarded. (See C.
Muniappan v. State of T.N[172]., Dara
Singh v. Republic of India[173], Surendra
Koli v. State of U.P.[174], Mohd.
Mannan[175] and Sudam v. State of
Maharashtra[176].)

21. Thus, it is evident that for awarding the
death sentence, there must be existence of
aggravating circumstances and the
consequential absence of mitigating
circumstances. As to whether the death
sentence should be awarded, would
depend upon the factual scenario of the
case in hand.”

67. Thus, when it comes to deciding as to whether the

sentence of death, be inflicted or not, principles as enunciated in

the two judgements above have to be kept in mind and the

interest of society vis-a-vis interest of individual also need to be

weighed.

68. Needless to say, appropriate sentence does become a

vexed question in such matters.

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69. The Apex court in the case of Shankar Kisan Rao Khade

vs. State of Maharashtra, 2013 (5) SCC 546, has held that for

awarding death penalty, the Crime Test, Criminal Test and R.R.

Test have to be satisfied. Crime Test has to be 100%, Criminal

Test 0% and R.R. Test, ie., Rarest of Rare Test is also required

to be proven. Crime Test is 100% when no iota of doubt remains

regarding commission of offence by the accused. Criminal Test

is 0% when there are no such mitigating circumstances in

favour of the accused, which may call for a lenient view in his

favour.

70. The following excerpts from Shankar Kisan Rao

Khade’s (supra) are relevant :-

50……………….. In my considered view that
the tests that we have to apply, while
awarding death sentence, are “crime test”,
“criminal test” and the R-R Test and not
“balancing test”. To award death sentence, the
“crime test” has to be fully satisfied, that is
100% and “criminal test” 0%, that is no
Mitigating Circumstance favouring the
accused. If there is any circumstance
favouring the accused, the ‘crime test’ made
favoured the accused to avoid the capital
punishment. Even if both the test are satisfied,
ie., the aggravating circumstances, fullest
extent and no mitigating circumstances
favouring the accused, still we have to apply
finally the Rarest of Rare Case test (R-R
Test). R-R 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
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,
suffering from physical disability, old and
infirm women with those disabilities etc..
Examples are only illustrative and not
exhaustive. Courts award death sentence since
situation demands so, due to constitutional
compulsion, reflected by the will of the
people and not the will of the judges.

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71. The Apex court in the case of Shankar Kisan Rao

Khade (supra) took into account a number of Apex court

judgments in which the offence of rape and murder of children

had been committed by the accused and in some of which the

extreme penalty of death was imposed and in others life

imprisonment had been imposed and observed that the reason

for such variance was not considering the mitigating

circumstances, ie., Criminal Test. The Apex Court in para 47 has

observed as under :-

“47. Bachan Singh is more than clear that
the crime is important (cruel, diabolic,
brutal, depraved and gruesome) but the
criminal is also important and this,
unfortunately has been overlooked in several
cases in the past (as mentioned in Santosh
Kumar Satishbhushan Bariya v/s. State of
Maharashtra, (2009) 6 SCC 498) and even in
some of the cases referred to above. It is this
individualized sentencing that
has made this Court wary, in the recent past,
of imposing death penalty and instead
substituting it for fixed term sentences
exceeding 14 years (the term of 14 years or
20 years being erroneously equated with life
imprisonment) or awarding consecutive
sentences. Some of these cases, which are
not necessarily cases of rape and murder, are
mentioned below.”

72. In the case in hand, the appellant was driven by twin

feelings of revenge and lust and perpetrated acts of murder and

rape in extremely brutal manner. This case is fully satisfied on

the aspect of crime test, which is 100%, meaning thereby, that

the aggravating circumstances of murder involves exceptional

depravity. There are as many as 30 injuries on the small frame

of the girl-child which include crushing of her skull bone and

throttling her as well. The question regarding the “criminal

test” now remains to be deliberated upon. For the criminal test

–47– CRRFC No.12/2019 CRA. No.8818/2019

to be 0%, it has to be shown that there are no mitigating

circumstances in favour of the criminal i.e. the appellant. The

mitigating circumstance would encompass his criminal

background and if there is no criminal background, it would be

a mitigating circumstance. The prosecution has filed newspaper

cutting, which is Exhibit-P/41 exhibited by Deepak Yadav

(PW22). As per this report, the appellant had earlier committed

rape and murder of a seven year old girl-child and had spend

three years in jail. Sunil Sharma (PW36) in para-11 of his

statement has also exhibited paper cutting of daily “Patrika” and

“Dainik Bhaskar”, which are Exhibits-P/89 and P/90, in which

it has been mentioned that appellant Honey had spent three

years in jail as a juvenile. However, the prosecution was

required to establish the factum of appellant’s criminal

background by submitting relevant substantive pieces of

evidence which has not been done.

73. The Apex Court in the case of Bachan Singh (supra) has

held that the State was required to prove that the accused would

not commit criminal acts of violence as would constitute a

continuing threat to society and that there is no probability that

the accused can be reformed and rehabilitated by leading

evidence to that effect.

74. In the case in hand, the prosecution has failed to prove the

criminal antecedents of the appellant for which Investigating

Officer Sunil Sharma (PW36) and Ram Narayan Bhadoriya

(PW34) are responsible. Hence, in absence of such proof, as

ordained in the case of Bachan Singh (supra), it cannot be

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proved that the appellant had criminal antecedents and

therefore, the present case fails to achieve the yardstick of 0%

criminal test, as formulated in the Apex Court judgment of

Shankar Kisan Rao Khade (supra).

75. Moreover, recently the three-Judge Bench judgment of

the Apex Court, in the case of Ravishankar (supra) has laid

down that before awarding death sentence, the Court has to

record its satisfaction that there are no residual doubt as to the

culpability of the appellant, which is stiffer standard than “proof

beyond reasonable doubt”. In the aforesaid case, the Apex

Court has observed as under :-

55……… This Court has increasingly become
cognizant of `residual doubt’ in many recent
cases which effectively create a higher
standard of proof over and above the `beyond
reasonable doubt’ standard used at the stage of
conviction, as a safeguard against routine
capital sentencing, keeping in mind the
irreversibility of death.

56. In Rameshbhai Chandubhai Rathod vs.
State of Gujarat,12 this 12 (2011) 2 SCC 764
Court noted that reliance on merely ‘plausible’
evidences to prove a circumstantial chain and
award death penalty would be “in defiance of
any reasoning which brings a case within the
category of the “rarest of rare cases”.” Further,
various discrepancies in other important links in
the circumstantial chain as well as lack of any
cogent reason by the High Court for not
accepting the retraction of the confession
statement of the accused was noted. Acting
upon such various gaps in the prosecution
evidence as well as in light of other mitigating
circumstances, like the possibility that
there were

others involved in the crime, this Court refused
to confirm the sentence of death despite
upholding conviction.

57. Such imposition of a higher standard of
proof for purposes of death sentencing over and
above ‘beyond reasonable doubt’ necessary for
criminal conviction is similar to the “residual
doubt” metric adopted by this Court in Ashok

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Debbarma vs. State of Tripura13 wherein it was
noted that:

“in our criminal justice system, for
recording guilt of the accused, it is
not necessary that the prosecution
should prove the case with
absolute or mathematical
certainty, but only beyond
reasonable doubt. Criminal
Courts, while examining whether
any doubt is beyond reasonable
doubt, may carry in their mind,
some “residual doubt”, even
though the Courts are convinced
of the accused persons’ guilt
beyond reasonable doubt.”

58. Ashok Debbarma (supra) drew a
distinction between a ‘residual doubt’, which
is any remaining or lingering doubt about the
defendant’s 13 (2014) 4 SCC 747 guilt
which might remain at the sentencing stage
despite satisfaction of the ‘beyond a
reasonable doubt’ standard during
conviction, and reasonable doubts which as
defined in Krishan v. State14 are “actual and
substantive, and not merely imaginary,
trivial or merely possible”. These ‘residual
doubts’ although not relevant for conviction,
would tilt towards mitigating circumstance
to be taken note of whilst considering
whether the case falls under the ‘rarest of
rare’ category.

59. This theory is also recognised in other
jurisdictions like the United States, where
some state courts like the Supreme Court of
Tennessey in State vs. McKinney15 have
explained that residual doubt of guilt is a
valid non-statutory mitigating circumstance
during the sentencing stage and have
allowed for new evidence during sentencing
proceedings related to defendant’s character,
background history, physical condition etc.

76. In the aforesaid case of Ravishankar (supra), facts were

quite akin to the case in hand. The Trial Court had convicted

and sentenced the accused under Section 302 and 201 of IPC as

also under Sections, 363, 366, 376(2(i), 376 (2)(n), 376 (2)(j),

376 (2)(na) and 376A of IPC. The appellant was sentenced to

death in respect of Section 376A of IPC. The case was based

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on circumstantial evidence such as, last seen theory, recovery of

incriminating articles on the basis of memorandum of accused

as also DNA analysis etc. The various circumstances were

found to be forming a complete chain in arriving at the

conclusion of conviction. However, when it came to sentencing

the accused, the Court observed as under :-

61. In the present case, there are
some residual doubts in our mind. A
crucial witness for constructing the last
seen theory, P.W.5 is partly inconsistent
in cross-examination and quickly jumps
from one statement to the other. Two
other witnesses, P.W.6 and P.W.7 had
seen the appellant feeding biscuits to the
deceased one year before the incident
and their long delay in reporting the
same fails to inspire confidence. The
mother of the deceased has deposed that
the wife and daughter of the appellant
came to her house and demanded the
return of the money which she had
borrowed from them but failed to
mention that she suspected the appellant
of committing the crime initially.
Ligature marks on the neck evidencing
throttling were noted by P.W.20 and
P.W.12 and in the postmortem report,
but find no mention in the panchnama
prepared by the police. Viscera samples
sent for chemical testing were spoilt and
hence remained unexamined. Although
nails’ scrappings of the accused were
collected, no report has been produced
to show that DNA of the deceased was
present. Another initial suspect, Baba
alias Ashok Kaurav absconded during
investigation, hence, gave rise to the
possibility of involvement of more than
one person. All these factors of course
have no impact in formation of the chain
of evidence and are wholly insufficient
to create reasonable doubt to earn
acquittal.

62. We are cognizant of the fact that
use of such ‘residual doubt’ as a
mitigating factor would effectively raise
the standard of proof for imposing the
death sentence, the benefit of which
would be availed of not by the innocent
only. However, it would be a
misconception to make a cost-benefit

–51– CRRFC No.12/2019 CRA. No.8818/2019

comparison between cost to society
owing to acquittal of one guilty versus
loss of life of a perceived innocent. This
is because the alternative to death does
not necessarily imply setting the convict
free.

63. As noted by the United States
Supreme Court in Herrera v. Collins,16
“it is an unalterable fact that our judicial
system, like the human beings who
administer it, is fallible.” However,
death being irrevocable, there lies a
greater degree of responsibility on the
Court for an in-depth scrutiny of the
entire material on record. Still further,
qualitatively, the penalty imposed by
awarding death is much different than in
incarceration, both for the convict and
for the state. Hence, a corresponding
distinction in requisite standards of
proof by taking note of ‘residual doubt’
during sentencing would not be
unwarranted.

64. We are thus of the considered
view that the present case falls short of
the ‘rarest of rare’ cases where the death
sentence alone deserves to be awarded
to the appellant. It appears to us in the
light of all the cumulative circumstances
that the cause of justice will be
effectively served by invoking the
concept of special sentencing theory as
evolved by this Court in Swamy
Shraddananda (supra) and approved in
Sriharan case (supra).

77. Applying the principles and the law laid down in the

aforesaid judgment of Ravishankar (supra) as also other

judgments, it shall now be considered as to whether there are

any residual doubts in the case in hand.

78. On revisiting the evidence available on record, it appears

that there are few lapses in the evidence gathered by the

prosecution and the circumstances obtained in the case and

these are as follows :-

a) While sending the appellant for his
examination, a query was made to the
concerning physician to see as to whether

–52– CRRFC No.12/2019 CRA. No.8818/2019

there are any injuries on the person of the
appellant or not. It was necessary to
enquire because sexually violating a four
year old girl-child would probably have
caused injuries to the appellant at specific
places, which would have further
substantiated the prosecution case.
However, the concerning physician Dr.
Prabodh Joshi (PW32) has not answered
the aforesaid query.

b) It can be seen that the last seen
theory hinges upon the statement of
witness Indu (PW11). It is quite strange
that this witness is the wife of Premnath
(PW12) who on the next day has seen
body of the girl-child. Such coincidence is
quite providential and a lingering doubt
arises as to whether the last seen witness
has been roped in by the Investigating
Officer in order to substantiate prosecution
case.

c) The Trial Court has not considered
the factum of murder of the girl-child as
rarest of rare case and only imposed life
imprisonment and no appeal has been
preferred by the State seeking
enhancement of sentence to that of death.

d) As already stated, the prosecution
has failed to substantiate the newspaper
cuttings regarding the criminal antecedents
of the appellant by submitting proper proof
thereof.

79. In view of the above, “standards of residual doubt” has

not been satisfied by the prosecution although, the prosecution

has been able to prove the case “beyond reasonable doubt”.

Hence, we are of the opinion that 0% criminal test has not been

satisfied and there are residual doubts as indicated above and

these factors consequently, would result in the case falling short

of “rarest of rare” category. The sentence of death imposed

upon the appellant is thereby reduced from death sentence to

imprisonment for life, which shall mean, imprisonment for the

remainder of appellant’s natural life for committing offence

under Section 376A of IPC. The sentences imposed in respect

–53– CRRFC No.12/2019 CRA. No.8818/2019

of rest of other proved penal provisions stand affirmed and

consequently, the sentences as imposed against the appellant in

final analysis would be as under :-

Provisions of IPC Sentence
Section 363 of IPC 5 years RI with fine of
Rs.2,000/-. In default on
payment of fine, 2 months
additional RI.
Section 366 of IPC 7 years RI with fine of
Rs.3,000/-. In default on
payment of fine, 2 months
additional RI.
Section 376-AB of IPC Life imprisonment till natural
death with fine of Rs.4,000/-.
In default of payment of fine, 3
months additional RI.

Section 5(n) r/w Section 6 of Life imprisonment with fine of
the POCSO Act Rs.4,000/-/ In default of
payment of fine, 3 months
additional RI.

Section 302 of IPC Life imprisonment with fine of
Rs.4,000/-. In default of
payment of fine, 3 months
additional RI.
Section 201 of IPC 3 years RI with fine of
Rs.2,000/-. In default of
payment of fine, 2 months
additional RI.
Section 376-A of IPC Life imprisonment for the
remainder of his natural life.

80. All jail sentences to run concurrently.

81. The appeal filed by the appellant/accused consequently,

stands dismissed on the point of conviction. However, the

appeal is partly allowed on the quantum of sentence only in

respect of Section 376-A of IPC. The reference is answered

in above terms.

–54– CRRFC No.12/2019 CRA. No.8818/2019

82. The order of the trial court regarding disposal of the

property is maintained.

83. Let a copy of this judgment be retained in the record of

Criminal Appeal No.8818/2019.

84. Office is directed to send a copy of this judgment

immediately to the concerned trial court along with the

record of trial court to take appropriate steps as per law.

             (S.C. SHARMA)             (SHAILENDRA SHUKLA)
JUDGE JUDGE
SS/-

Digitally signed by Shailesh
Sukhdev
Date: 2020.03.05 10:24:59 +05'30'

--55-- CRRFC No.12/2019 CRA. No.8818/2019

THE HIGH COURT OF MADHYA PRADESH : BENCH
AT INDORE

BEFORE DIVISION BENCH: JUSTICE S.C. SHARMA
AND JUSTICE SHRI SHAILENDRA SHUKLA

Case No. : CRRFC.No.12/2019 and CRA.

No.8818/2019
Parties name : State of M.P. vs. Honey @
Kakku (CRRFC.No.12/2019)

Honey @ Kakku vs. State of
M.P. (CRA. No.8818/2019).

Date of Judgement          : 03/03/20
Bench constituted of : Hon'ble Justice Shri S.C. Sharma
and Hon'ble Justice Shri
Shailendra Shukla
Judgement delivered by : Hon'ble Justice Shri Shailendra
Shukla
Whether approved for : Yes
reporting

Name of counsels for the : Shri R.S. Chhabra, learned Addl.

Advocate General with L.S.

parties
Chandiramani, Advocate for the
Appellant/State.

Shri Avinash Sirpurkar, learned
Senior Advocate with Shri B.

Patel, Advocate for the
respondent, as amicus curiae.

Law laid down : Rape and murder of 4 ½ years
of girl child by the appellant.

- Sentence of death imposed by
the trial Court under Section
376A of IPC.

- Reference answered. Rarest of
rare case :-

(i) Standard of 100% crime test
although satisfied, criminal test
of 0% was not satisfied as
mandated in (Shankar Kisan
Rao Khade vs. State of
Maharashtra, 2013 (5) SCC

546).

(ii) In order to impose sentence
of death the prosecution not

--56-- CRRFC No.12/2019 CRA. No.8818/2019

only has to prove the case
"beyond reasonable doubt" but
also "beyond residual doubt" (
Ravishankar @ Baba
Vishwakarma vs. State of
Madhya Pradesh, 2019 (4)
JLJ 258) (pronounced by 3
Judges Bench of Supreme
Court).

Para 69, 70, 71, 74, 73, 74
although prosecution had
proved its case beyond
reasonable doubt, but could not
prove it beyond residual doubt.

Held - Death sentence
commuted to life imprisonment
for reminder of appellant's
natural life.

Significant paragraph : 75, 76, 77, 78 and 79
numbers

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