CRRFC-01 CRA-2151 of 2018
1
HIGH COURT OF MADHYA PRADESH: JABALPUR
(Division Bench)
Criminal Reference No. 01 of 2018
In Reference
[Received from Special Judge, Court of
Protection of Children from Sexual Offences Act,
District Shahdol (M.P.)]
– V/s –
Vinod alias Rahul Chouhtha ………Respondent/Accused
With
Criminal Appeal No. 2151 of 2018
Vinod alias Rahul Chouhtha ……………… Appellant
– V/s –
State of Madhya Pradesh …………. Respondent
P.S. Kotwali, Shahdol (M.P.)
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CORAM :
Hon’ble Shri Justice Hemant Gupta, Chief Justice
Hon’ble Shri Justice Vijay Kumar Shukla, Judge
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Present:
Shri Albert Anthony and Shri S.K. Mukerjee, Advocates for the
Appellant.
Shri Vishal Daniel, Advocate as Amicus Curiae.
Smt. Namrata Agrawal, Government Advocate for the respondent/
State.
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Whether Approved for Reporting: Yes
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Law Laid Down:
The opinion of an expert is admissible in evidence u/S 293 of the CrPC and
therefore, cannot be discarded on the basis of books on Medical Jurisprudence
unless the passages which are sought to be discredited in the opinion of the
expert are put to him – Judgments relied – AIR 1975 SC 905 (Phool Kumar vs.
CRRFC-01 CRA-2151 of 2018
2
Delhi Administration) and AIR 1957 SC 589 (Bhagwan Das and another vs.
State of Rajasthan).
A DNA report must be accepted as scientifically accurate and is an exact
science. It would be a dangerous doctrine to lay down that report of an expert
witness could be brushed aside by making reference to some text on that subject
without such text being put to the expert. The Court cannot usurp the function of
an expert. – Judgment Relied – (2010) 9 SCC 747 (Santosh Kumar Singh vs.
State through CBI).
A positive result of DNA test would constitute clinching evidence against the
accused. If, however, result of test is negative, the weight of other material
evidence on record will still have to be considered. – Judgment Relied – (2017) 4
SCC 393 (Sunil vs. State of Madhya Pradesh).
The report of the doctors is based upon approximate time gap between the death
and the postmortem. Therefore, the approximation of time of death is not
approximation of the hours of the day as well.
Marg intimation (Ex.P-3) is a prior statement given by the witness. If it was at
variance with the statement made on oath, the witness was required to be
confronted but in absence thereof, the statement on oath in Court would be
relevant to appreciate the evidence of the prosecution.
The prosecution evidence consisting of last seen at the time when child went
missing; last seen near the vicinity of the place of crime; recovery of dead body
on the basis of disclosure statement of the accused; injuries on the person of the
accused as well as report of DNA, conclusively proves that it is the appellant,
who has violated the victim and then killed her.
It is an act of extreme depravity when the appellant prompted a child of four
years whose only fault was that she believed the appellant to be her well-wisher.
The crime against the girl child are on rise. The Court has the social
responsibility to make the citizen of this country know that law cannot come to
the rescue of such person on the basis of humanity. The extreme punishment
may convey a message to these predators that it is not a soft State where the
criminals committing such serious crimes may get reprieve in the guise of
humanity. The humanity is more in danger in the hands of the persons like the
appellant. In these circumstances, it is one of the rarest of rare cases where the
extreme capital punishment is warranted. – Death sentence affirmed.
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Judgements relied upon:
1. Review Petition (Crl.) No.570/2017 (Mukesh v. State of NCT of Delhi) decided
on 9.7.2018.
2. (2017) 6 SCC 631 (Vasanta Sampat Dupare vs. State of Maharashtra)
3. (2017) 6 SCC 1 (Mukesh and another vs. State (NCT of Delhi) and others)
4. (2017) 4 SCC 393 (Sunil vs. State of Madhya Pradesh)
5. (2017) 4 SCC 124 (B.A. Umesh vs. Registrar General, High Court of
Karnataka).
6. (2015) 6 SCC 632 (Shabnam etc. vs. State of Uttar Pradesh)
7. (2015) 1 SCC 253 (Vasanta Sampat Dupare vs. State of Maharashtra)
8. (2014) 5 SCC 509 (Dharam Deo Yadav vs. State of Uttar Pradesh)
9. (2014) 2 SCC 576 (Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and
another)
10. (2013) 10 SCC 421 (Deepak Rai v. State of Bihar)
11. (2013) 5 SCC 546 (Shankar Kisanrao Khade vs. State of Maharashtra)
12. (2011) 3 SCC 85 (B.A. Umesh vs. Registrar General, High Court of Karnataka)
13. (2010) 9 SCC 747 (Santosh Kumar Singh vs. State through CBI).
14. (2009) 6 SCC 667 (Ankush Maruti Shinde v. State of Maharashtra)
15. (2008) 11 SCC 113 (Bantu v. State of Uttar Pradesh)
16. (2002) 8 SCC 45 (Bodhraj alias Bodha vs. State of Jammu and Kashmir)
17. (1978) 4 SCC 435 (Madan Singh vs. State of Rajasthan)
18. AIR 1975 SC 905 (Phool Kumar vs. Delhi Administration)
19. AIR 1957 SC 589 (Bhagwan Das and another vs. State of Rajasthan)
Judgements referred to:
1. Division Bench judgment of this Court in Criminal Reference No. 05/2015 (In
Reference received from the First Additional Sessions Judge, Maihar v.
Sachin Kumar Singhraha) decided on 03.03.2016;
2. Division Bench judgment of this Court in CRRFC No.5/2017 (In Reference
Received from District Sessions Judge, Dindori vs. Bhagwani and
another) delivered on 09.05.2018
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Significant Paragraphs: 3, 6 to 10, 19 to 22, 25, 26, 28, 30, 36 to 67
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Reserved on : 19.07.2018
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CRRFC-01 CRA-2151 of 2018
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JUDGMENT
(Delivered on this 8th day of August, 2018)
Per : Hemant Gupta, Chief Justice:
The present Reference arises out of a judgment of conviction and
order of sentence passed by the learned Special Judge (Under the
Prevention of Children from Sexual Offences Act, 2012), Shahdol (M.P.)
on 28.02.2018 thereby convicting respondent Vinod alias Rahul Chouhtha
for an offence under Section 302 of the Indian Penal Code, 1860 (for short
“the IPC”) and sentencing him to death by hanging. The said respondent
has been further convicted under Section 376A of IPC and sentenced to
imprisonment for life and also convicted under Section 5/6 of the
Protection of Children from Sexual Offences Act, 2012 and sentenced to
undergo life imprisonment. All sentences were ordered to run concurrently.
2. The convict has filed Criminal Appeal No.2151/2018 against the
said judgment. Therefore, both the reference and appeal are taken up for
final hearing together.
3. The first information report (Ex.P-1) was lodged at 1.59 a.m. on
14.05.2017 in respect of missing of the daughter of Kallu Kahar between 9
a.m. to 9.10 a.m. on 13.05.2017. The statement is that he has two children;
one girl aged four years and a boy aged two years. He had gone to work in
village Jaithari but at about 11 a.m. on 13.05.2017 his wife Smt. Geeta
Kahar phoned him to say that his daughter has gone missing at about 9
a.m. He came back and tried to locate their daughter along with his wife.
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Since they were not successful in locating the child, it was apprehended
that she has been kidnapped by alluring. She was wearing a frock of blue
colour; knew the name of her parents; her face is round; whitish colour and
hair small. Such report was recorded by Shri Vedmani Sharma, Head
Constable.
4. On the basis of such report, a missing person report (Ex.P-2) was
lodged at about 2.14 a.m. PW-19 Rakesh Mishra is the person who was
working as Assistant Sub-Inspector in Police Station Kotwali, Shahdol. He,
in witness box, deposed that at about 23.30 hours, Kallu Kahar reported the
missing report of his daughter but such report was typed and uploaded on
computer, therefore, time of lodging of report is mentioned as 1.59 a.m.,
but, in fact, it was received at 23.30 hours. On the basis of such report
(Ex.P-1) in Rojnamcha, a missing person report was lodged on computer,
which is Ex.P-2. The entry in Rojnamcha Sanha is at Serial No.74 whereas
the computer printout is Ex.P-23. Copy of Ex.P-1 was sent to the
concerned Court, which stands acknowledged.
5. PW-21 is Rajni Nagbhire, Sub-Inspector, Police Station Kotwali,
Shahdol, who was entrusted with the investigation. She started
investigation at 9.30 a.m. on 14.05.2017 and joined the parents of the girl
in investigation. She prepared the site plan (Ex.P-10) as per the statement
of Geeta Kahar, mother of the girl. On the same day, she recorded the
statement of the landlady Beti Bai, where the parents of the girl were
tenants. On her statement, it was found that there is one person by the
name of Vinod, who offered chocolate biscuit etc. to the girl and took her
with him. It was also found that a boy called Kailash has seen the girl and
CRRFC-01 CRA-2151 of 2018
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the said person walking together. The boy Kailash was searched in the area
of bus stand and it was found that he was working on the shop of a
shoemaker. He disclosed that he can identify the person with whom he has
seen the girl. Kailash also informed her that he had asked the girl as to
where she was going. The said person was taking the girl towards the
petrol pump.
6. During the investigations, it was found that the person with whom
the girl has gone is Vinod, who can be identified by Kailash. She went to
the house of Vinod on 14.05.2017 but came to know that he has gone out.
On 15.05.2017, she went to the house of the accused with Kailash but was
informed that he can be found out near the petrol pump. She came towards
the petrol pump along with her staff and witness Kailash. They found that
accused was standing in front of the house of Nagendra Singh. Kailash
identified him that he is the same person who had accompanied the girl.
The accused was arrested and investigated. Near the petrol pump is a place
called Gheebada and that occurrence has taken place in the said Gheebada.
On investigation, he informed the complete sequence of events and that he
has purchased a biscuit and toffee from a shop and then taken the girl to
bus stand. He informed that he has concealed the dead body of the girl near
the wall of Chheula shrub and that he can get it recovered. Memorandum
Ex.P-13 was recorded in the presence of witnesses Munna Kahar and
Deepbahadur. The accused took the team to the place where he had kept
the dead body concealed. He removed the leaves of Chheula and then they
could see the dead body of the girl. The dead body was taken in possession
vide Ex.P-14. She called the parents of the deceased, who identified the
CRRFC-01 CRA-2151 of 2018
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dead body of their daughter. She prepared the identification memo of dead
body in the presence of Deepak Gupta and Raja Choudhary, which is Ex.P-
6. She recorded the information of death Ex.P-3. The distance of petrol
pump to Gheebada is about 100-200 meters.
7. Kamlendra Singh Karchuli (PW-22) is the Station House Officer of
Police Station Kotwali, Shahdol. He reached the place of occurrence at
around 12.00 noon on 15.05.2017. He stated that Rajni Nagbhire (PW-21)
has interrogated the accused in his presence. He has prepared the site plan
(Ex.P-7). The dead body was taken in possession after giving notice Ex.P-
4. He found that the eyes of the deceased were protruding and there were
injuries on her neck. The genital area of the victim was seriously injured
and had maggots. From the dead body it transpired that the child was killed
in the process of rape. The dead body was sent for postmortem
examination vide memo Ex.P-16. The accused was arrested vide memo
Ex.P-15 and was sent for medical examination vide request Ex.P-24. He
also requested for a sample for DNA profile of the accused vide Ex.P-25.
On 16.05.2017, he sent request for DNA profile of the accused to the
Superintendent of Police, Shahdol vide Ex.P-26, which was granted by the
Director General of Police, Shahdol vide Ex.P-27. The accused was
produced before the doctor in the Civil Hospital. The technician has drawn
blood sample of Vinod alias Rahul Chouhtha after identifying him. The
identification form is Ex.P-12. The blood sample for DNA profile was sent
to the Superintendent of Police, Shahdol vide Ex.P-28, which bears the
signature of Shri Shivkumar Varma, In-charge Superintendent of Police,
who has signed in his presence. The pubic hair of the accused was sent to
CRRFC-01 CRA-2151 of 2018
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Forensic Science Laboratory, Sagar; the report is Ex.P-29. Apart from the
blood sample of the accused, the underwear of deceased, vaginal slide of
deceased, underwear and semen slide of the accused and blood sample of
the accused were sent vide Ex.P-21 to the Forensic Science Laboratory,
Sagar. The report is Ex.P-30. Ex.P-31 is request to Patwari to prepare the
site plan. During the investigation, the statements of Munna Kumar, Amit
Gole, Satyavandan Kushwaha, Smt. Seeta Bai, Smt. Beti Bai, Suresh
Kumar Dubey and Sonu alias Harun Rashid Khan were recorded under
Section 161 of the Criminal Procedure Code, 1973 (in short “the CrPC”).
8. The postmortem on the dead body of the victim was conducted by
Dr. B.R. Prajapati (PW-9) and Dr. Nisha Chaturvedi (PW-10). As per the
postmortem report (Ex.P-16A), the following injuries were found on the
body of the deceased:
“(i) Rigor Mortis passed off.
(ii) Body is in stage of decomposition, with whole body swollen and
decomposition.
(iii) Bullous eruption present over the body.
(iv) Epidermal layer of skin peeled off at places.
(v) Eyes are protruding and maggots crawling over the body. Foul
smelling present.
(vi) Two deep lacerated wound seen, one in the anterior aspect of
neck below.
(vii) The mandible 5 x 3 x 2 cm trachea is exposed. Muscles torn.
Maggots crawling over the wound, another wound behind the
right side pinna 4 x 2 x 1 cm. Maggots present crawling over
the wound.
(viii) Vaginal orifice wide open with early decomposition changes with
swollen vulva with maggots present inside the vagina.
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On internal and external examination of private part, it was
observed as under:-
“Vaginal orifice wide open, vagina admitting two finger. Hymen
completely torn, maggots present in vaginal cavity. Skin around vulva
is in early stage of decomposition. However, two slide prepared from
vaginal secretion sealed packet and handed over to police constable
for chemical analysis. Black coloured underwear with white strips
also sealed packed and handed over to police constable for chemical
analysis. Opinion – signs of hyminal penetration present.”
According to the doctors, a black coloured underwear with white
strips and two slides prepared from vaginal secretions in sealed packets
were handed over to the constable for chemical analysis. In the opinion of
Dr. B.R. Prajapati (PW-9) and Dr. Nisha Chaturvedi (PW-10), the cause of
death is injury to the anterior cervical structure (trachea) leading to
asphyxia resulting into death. The duration elapsed after death is 2-3 days.
9. Ex.P-18 is the seizure memo of semen slide of the accused
received from hospital in sealed packet; underwear of the accused in a
sealed packet; pubic hair of the accused in a sealed packet; the blood
sample of the accused in a sealed packet along with sample seal of Dr. S.D.
Kanwar. Ex.P-19 is the seizure memo of the articles of the victim including
the underwear of the deceased in a sealed packet; vaginal slide of the
deceased; and sample seal of Dr. Nisha Chaturvedi. The requests were sent
by the Superintendent of Police, Shahdol vide Ex.P-20 and Ex.P-21 for
forensic science examination. Ex.P-29 is the report of State Forensic
Science Laboratory, Sagar. The pubic hair of the accused were not found
with any traces of semen whereas the DNA report is Ex.P-30. The report
has been prepared on the basis of organic and automated DNA extraction
CRRFC-01 CRA-2151 of 2018
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method. Out of the DNA received for the purposes of examination,
amplification of required 24 autosomal genetic marker was done with
Global Filer Kit through Multiplex PCR process and amplification of
required Y Chromosome Genetic marker was done with Y Filer Plus Kit. In
this manner, Genotyping profile of amplified DNA was prepared with
Genetic Analyzer. The results were prepared by GeneMapper Software ID-
X 1.5. Articles ‘A’ and ‘B’ are underwear and vaginal slide of the deceased
whereas articles ‘C’ and ‘D’ are blood sample and underwear of the accused.
Out of 24 classifications of DNA sample of the accused, there was
corresponding matching of 10 allelomorph on the underwear of the girl
whereas 10 allelomorph on the vaginal slide were matching from the DNA
blood sample of the accused. The notes on such report are that semen slide
of the accused was not taken for consideration; male mixed autosomal STR
DNA profile was not detected from the source of Article ‘A’ and ‘B’; mixed
autosomal STR DNA profile was not detected from the source of Article
‘D’; and that highly decomposed materials were found on the source of
Article ‘A’ which was not a suitable exhibit for DNA examination.
10. On the basis of the report as mentioned above, it was concluded
that underwear and vaginal slide of the deceased has male DNA profile
whereas Y-chromosome was found on the underwear and blood sample of
the same person. It was, thus, concluded that on the basis of underwear
marked ‘A’ and vaginal slide marked ‘B’ and the partial male chromosome
found in the DNA profile of the accused Article ‘C’ and DNA profile on
account of similarity in the allele, the accused cannot be absolved of the
allegations.
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11. The Investigating Officer completed the investigation by recording
the statement of witnesses under Section 161 of the CrPC and after
completion of the other formalities made the accused to stand trial.
12. In the course of trial, the prosecution examined Beti Bai as PW-13,
the landlady of the house of the parents of the deceased; PW-8 Amit Gole
aged 17 years; and PW-2 Kailash – a child of 9 years, as the witnesses, who
have seen the deceased in the company of the accused going from her
house around 9 a.m. on 13.05.2017. The prosecution also relied upon
recovery of dead body on the basis of disclosure statement of the accused
Ex.P-13 recorded at 11.50 a.m. whereas dead body was recovered at 12.10
noon vide memo Ex.P-14.
13. The prosecution also relies upon statement of PW-5 Munna Kumar
Gupta, PW-11 Harun Rashid alias Sonu Khan, PW-12 Satyavandan
Kushwaha, as the witnesses who have seen the deceased with the appellant
near the petrol pump going towards Gheebada i.e. the place of occurrence.
The prosecution also relies upon DNA matching vide report Ex.P-30. The
prosecution also relies upon injuries on the person of the accused as per
medico-legal report Ex.P-11 proved by Dr. S.D. Kanwar (PW-4), who
examined the accused on 16.05.2017. The report is that smegma was
present on the glans penis; there were multiple abrasions present on the
penis of the accused which were between 1 to 4 days old and that his both
the knees have abrasion 2 cm x 1 cm.
14. The prosecution also examined Kallu Kahar, father of the girl as
PW-1 and Geeta Kahar, mother of the girl as PW-3.
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15. The marg intimation in terms of Section 174 of the CrPC was
recorded on 15.05.2017 at 12.35 p.m. on the statement of Kallu Kahar
(PW-1). The statement is that he is the resident of Ward No.18, Balpurva
and that his four years old daughter went missing on 13.05.2017. He has
lodged a report in Police Station Kotwali. He and his wife reached
Gheebada and there, under the tree of Chheula (a shrub having big leaves)
they found dead body of their daughter. The dead body had maggots and
that it was lying under the tree of Chheula. On the basis of such statement,
a report was recorded.
16. With this background, the argument of the learned counsel for the
appellant/accused is as under:-
(i) That, the marg intimation (Ex.P-3) is recorded at 12.35 p.m.
in respect of the occurrence which is said to have taken place
between 13.05.2017 from 9.00 a.m. till 12.10 p.m. on
15.05.2017. A reading of such statement would show that
dead body was not recovered on the statement of the accused
as there is no indication that the police or the accused led
them to the place of occurrence but the statement is that they
reached Gheebada while searching for their daughter.
Therefore, the document Ex.P-3 creates doubt on the
correctness of prosecution story of recovery of dead body on
the statement of accused vide memo Ex.P-13.
(ii) Rajni Nagbhire (PW-21) has stated in her cross-examination
that the accused was evasive but when she asked with force
(tksj tcjnLrh ), the accused gave the entire sequence of events.
CRRFC-01 CRA-2151 of 2018
13It is argued that the use of force by the police means only one
thing that he was beaten, which probably led to disclosure
statement. Therefore, disclosure statement is not a voluntary
act but is a statement extracted from him.
(iii) It is argued that the entire story of the prosecution is based
upon circumstantial evidence but the circumstances do not
conclusively lead to sexual assault and murder by the
appellant. The prosecution has based its conclusion on
presumptions, which are not leading conclusively to the
commission of crime by the appellant.
(iv) It is also argued that last seen evidence of the prosecution of
accused having been seen near the place of residence of
parents of the deceased is a weak type of evidence, as
somebody else had the opportunity to take the girl and to
commit the crime. Similarly, the statement of the witnesses
who have seen the deceased with the accused near the place of
occurrence suffer from same infirmity.
(v) It is contended that Note 2 on the DNA Report (Ex.P-30) is
that male mixed autosomal STR DNA profile was not detected
from the underwear and vaginal slide of the deceased. Such
STR DNA profile was not detected from the underwear of the
accused as well. Therefore, the conclusion drawn by the
expert that recovery of partial male Y-Chromosome on the
underwear and vaginal slide of the deceased and Y-
Chromosome from the blood sample of the accused is proved
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to be of same allele group, does not lead to the commission of
crime by the appellant.
(vi) Lastly, the learned counsel for the appellant has argued that as
per postmortem examination report Ex.P-16(A), duration
elapsed after death is 2-3 days. The postmortem was
conducted on 15.05.2017 at about 2.10 p.m., therefore, the
time of occurrence is afternoon of 13th of May, 2017 whereas,
the prosecution evidence is that the child went missing at
about 9 a.m. Therefore, timing of death does not correlate
with the time of missing of the child.
17. On the other hand, learned counsel for the State argued that the
marg intimation (Ex.P-3) was recorded on 15.05.2017 at 12.35 p.m.
whereas the dead body was already recovered on the basis of disclosure
statement (Ex.P-13) recorded at 11.50 a.m. Since the statement is of an
illiterate person, who was in shock on account of missing of her daughter,
therefore, the fact that he has stated that he and his wife reached Gheebada
trying to search their daughter, does not mean that the dead body was
found out by the father of the girl. It is also pointed out that the prosecution
case is based upon last seen evidence of PW-13 Beti Bai – the landlady of
the house of the parents of the girl, PW-8 Amit Gole – a boy aged 17 years,
PW-2 Kailash Singh Paraste – a child of 9 years. Such witnesses have
deposed that they have seen the deceased in the company of the accused at
around 9 a.m. The second set of last seen evidence is of PW-5 Munna
Kumar Gupta and PW-12 Satyavandan Kushwaha, who have seen the
deceased along with the appellant near Gheebada opposite Dadhibal Petrol
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Pump whereas another witness PW-11 Harun Rashid alias Sonu Khan has
seen the deceased in the company of accused in the waiting room of New
Bus Stand. The witnesses have also deposed about the clothes worn by the
child at that time. The prosecution has also proved the recovery of the dead
body on the statement of the accused (Ex.P-13) whereas the memo of
recovery of dead body is Ex.P-14 recorded on 15.05.2017 at 12.10 p.m.
The dead body was concealed under the leaves of Chheula. It was
explained that shrubs of Chheula have big leaves which are used for
serving food as well. Since the dead body was concealed under the leaves,
therefore, such body could not be recovered by chance except on the
pointing out by the person, who has kept it concealed. Apart from the said
fact, the accused has injuries on his person including on penis and knees.
Even Smegma was present. It is argued that the accused was not married,
therefore, presence of Smegma is indicative of the fact that the accused has
involved himself into sexual intercourse. Y-chromosome was found on the
underwear of the deceased and her vaginal slide and such Y-chromosome
matches with Y-chromosome found on the blood sample and underwear of
the accused. Still further, the accused in his statement recorded under
Section 313 of the CrPC, in respect of question No.145 has stated that he
had gone to attend a wedding at Naurajobad and that he was not present in
the village. He has not committed any crime. On account of enmity the
false case has been registered. Earlier in respect of question No.143, the
answer is that on account of dispute relating to use of water, the witnesses
have enmity against him. It is argued that there is no suggestion that any of
the witnesses have any enmity on account of water dispute nor has the
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accused produced evidence that he went to Naurajobad for attending the
wedding.
18. In this background, we consider the evidence produced by the
prosecution.
19. Beti Bai (PW-13) is the landlady of the house in which the parents
of the deceased were residing. She has deposed that a month before giving
of the statement on 06.07.2017, the parents of the deceased had gone to
work at Anooppur leaving the child with her. The child had a tea and
biscuit and was playing in the courtyard. At 9.00 a.m., she has seen Vinod
sitting on the steps of house of Guptaji, which is opposite her house. The
child was playing outside at that time. She went inside and started washing
clothes. At about 9.30 a.m. when she came out, she did not find the child.
She found that two boys were standing there and one of them told her that
the child was taken by Vinod. She tried to locate the child towards
Aanganwadi but remained unsuccessful. At about 11.00 a.m. mother of the
child came back from work and they tried to locate the child but were
unable to do so. In her cross-examination, no question was put that two
boys have not informed her about the fact that the girl was seen with
appellant Vinod. Such two boys have been examined by the prosecution as
well.
20. PW-8 is Amit Gole, aged 17 years. The Court has satisfied itself
about the capacity of the child to be a competent witness. He deposed that
at about 8.30 a.m., he was at his house. The house of the accused is at
about 10 steps from his house. He has seen the accused going towards the
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house of child. The child used to stay in the house of Beti Bai along with
her parents on rent. At about 9.30 a.m., Beti Bai came and they
unsuccessfully tried to locate the child. In cross-examination, he admitted
that the street in front of his house is used by the accused as well as other
persons of the locality. He told the police that Beti Bai came to his house to
find out the child. He stated that he cannot give the reasons as to why such
fact is not mentioned in his statement under Section 161 of the CrPC.
21. PW-2 is Kailash Singh Paraste, aged 9 years. After recording
satisfaction that he is competent to be a witness, his statement was
recorded. He deposed that about one month back he was riding his bicycle
near the bus stand. He saw the deceased with the accused. Both were
sitting on a platform. He asked the child as to where is she going. She
stated that she is going to the house of Nanna. At that stage, the accused
and the child went away. The accused had caught hold of the child and had
gone towards Gheebada. He then followed him up to the petrol pump. He
heard that child was crying for mother and that accused was pulling her
towards Gheebada. Such occurrence has taken place at about 11 a.m. when
he has seen the accused with the girl going towards Gheebada. In cross-
examination, he denied the suggestion that he knew the accused for 2-3
years and that he has not told anybody that the accused has taken the child
towards Gheebada. He stated that he told the parents of the child when
they came searching for her. On his information, the parents have gone half
way towards Gheebada. He deposed that the police prompted him to give
statement and that he is giving the statement as prompted by the police. He
denied the suggestion that he has not seen the accused going along with the
CRRFC-01 CRA-2151 of 2018
18
child and that he cannot identify the person who has taken the child with
him.
22. The argument of the learned counsel for the appellant was that PW-
2 Kailash is a tutored witness, as admitted by him; therefore, his testimony
is not of a reliable and truthful witness. But, we find that the testimony of
the witness has not been shattered in cross-examination, which is a potent
method of discrediting a witness. Therefore, the statement that he is
deposing as such as told by the police, is not of material consequence. His
presence near the residence of the accused and the child is not disputed. He
denied the suggestion that he knows the accused for 2-3 years but another
suggestion is that he does not identify the person, who has taken the child
with him. It, thus, transpires that the cross-examination is not in a coherent
manner to discredit the testimony of the witness.
23. Ex.P-8 is the site plan prepared by Patwari, Shri Satyanarayan
Mishra who has been examined as PW-23. Such site plan is attested by
Kallu Kahar (PW-1) and Munna Kumar (PW-5), apart from Kallu
Kushwaha, Ganga Gupta and Bhimsen Sahu. Ex.P-10 is the site plan
prepared by PW-21 Rajni Nagbhire in respect of the house of the victim,
landlady Beti Bai and house of Shankar Gole, father of Amit Gole (PW-8).
All the houses are in the near vicinity.
24. Ex.P-13 is the disclosure statement recorded by PW-21 Rajni
Nagbhire, Sub-Inspector, Police Station Kotwali, District Shahdol on
15.05.2017 at 11.50 a.m. in the presence of Munna Kumar (PW-5) and
Deepbahadur Singh (PW-6). The accused stated that he can get the dead
CRRFC-01 CRA-2151 of 2018
19
body recovered. On the basis of such statement, the dead body was
recovered vide Memo Ex.P-14 again in the presence of Munna Kumar and
Deepbahadur at 12.10 p.m. Such statements are proved by PW-21 Rajni
Nagbhire and also by PW-5 Munna Kumar Gupta and PW-6 Deepbahadur
Singh.
25. The witnesses of recovery memo have supported the disclosure
statement and the recovery made in pursuance of such disclosure
statement. The Supreme Court in a judgment reported as (1978) 4 SCC
435 (Madan Singh vs. State of Rajasthan), held that if the evidence of
the investigating officer who recovered the material objects is convincing,
the evidence as to recovery need not be rejected on the ground that seizure
witnesses do not support the prosecution version. In the case in hand, the
witnesses of the seizure memos have supported the prosecution story
completely.
26. Munna Kumar Gupta (PW-5) has stated that he has an auto
repairing shop opposite Dadhibal Petrol Pump. At about 11 to 12 noon on
13.05.2017, he went to ease himself in an open park called Gheebada. At
that time, he saw the accused present in the court along with child of about
four years roaming around near Mahua tree. He did not find it suspicious
as he thought that somebody along with his child must be roaming about.
On 15.05.2017, police came with the accused in Gheebada near the Mahua
tree. At that time, the accused told the police that he has kept the dead body
concealed under the Chheula tree near boundary wall. He is a witness to
such disclosure statement. He deposed that a foul smell was coming from
the dead body and that the child was wearing T-shirt and underwear. Her
CRRFC-01 CRA-2151 of 2018
20
eyes were protruding and there was injury in her thigh. He deposed that
photographs article A-2 to A-5 are the photographs of the child, who was
found with the injuries at the instance of the accused. In cross-examination
he deposed that police has recorded his statement after two days of the
occurrence i.e. on the day when the dead body was recovered. He admitted
that on 13.05.2017 when the accused was seen in the company of the child,
he had no idea about the name of the accused. He deposed that the place
where he went to ease himself is about 200 meters from the tree of Mahua.
He deposed that there was no test identification. He identified the accused
when he was brought to the place of occurrence. He again disclosed that
the age of the boy, who was with the child could be 25-26 years. The police
and the accused were present in Gheebada on 15.05.2017 and in their
presence some other people came. He denied that police knew that the
dead body is lying there and that police has already recovered the dead
body. He denied about the information of location of Sarkar Petrol Pump.
The petrol pump which is in front of his shop is called Dadhibal Petrol
Pump. The other petrol pump behind the bus stand is about half-a-
kilometer. He denied that he knows any Sarkar Petrol Pump. He denied the
suggestion that the police has taken out the dead body by themselves. He
asserted that the accused has removed the leaves to take out the dead body.
27. PW-6 is Deepbahadur Singh, the other witness of last seen and of
recovery of the dead body. He deposed that the accused gave statement that
he has kept the dead body concealed near the wall under the tree of
Chheula. The police had taken the accused near the tree of Chheula and the
accused removed the leaves to take out the dead body. He deposed that the
CRRFC-01 CRA-2151 of 2018
21
arrest memo Ex.P-15 was prepared in his presence. He also identified the
photographs A-2 to A-5 as the photographs, which were taken at the time
of recovery of the dead body. In the cross-examination, he stated that he
was not familiar with the accused and that he was getting his auto-repaired
from a shop of auto-mechanic at a distance of 20-25 steps from the place of
recovery of dead body. When he reached there, 10-20 people were already
present. He denied the suggestion that the police have taken the dead body
before he reached the place of occurrence. Sarkar Petrol Pump is at a
distance of 200 meters. He stated that the dead body was like a burnt body
and this was of a girl.
28. PW-11 is Harun Rashid alias Sonu Khan. He is familiar with the
accused and also with the deceased. He deposed that on 13.05.2017, he has
gone to new bus stand at about 10.30 – 11.00 a.m. He works for a
newspaper and that he has gone for coverage of news. He has seen the
accused along with a girl child in the waiting room of the bus stand where.
Child was eating something. The accused wished him but he went to his
work. On 15.05.2017, at about 12.00 noon he came to know that in
Shahdol near Gheebada, dead body of a child has been recovered. He has
seen the accused standing with the police officials. After seeing the
accused and the dead body he could identify that the accused and the child
are the same whom he has seen on 13.05.2017 in the waiting room of the
new bus stand. He stated that he does not remember exactly but the T-shirt
on the dead body was the same, which was worn by the child while sitting
in the waiting room. In cross-examination, he stated that he did not know
the child before 13.05.2017. He denied the suggestion that he has not seen
CRRFC-01 CRA-2151 of 2018
22
the child on 13.05.2017 and that he was not familiar with the accused. He
has taken the photographs of the dead body. He denied the suggestion that
from the smell emanating from the dead body; anybody could find out that
there is a dead body. The photographs taken by him could make out that it
was a dead body of a girl child. He denied the suggestion that he has not
gone to Gheebada on 15.05.2017 and that he has not seen the child on
13.05.2017 at the new bus stand. He has also denied the suggestion that he
has not taken the photographs.
29. PW-12 Satyavandan Kushwaha is a car mechanic whose workshop
is near the bus stand. He knows the appellant/accused present in court. He
deposed that on 13.05.2017 when he was standing with one of his friend at
about 10.30 – 11.00 a.m. he saw the accused roaming about with one child
aged about 4-5 years in Gheebada near Dadhibal Petrol Pump. On
15.05.2017, the people had gathered near Mahua tree in Gheebada where
the police force was also there. When he reached near the place of
occurrence, he saw the accused was standing with the police and was
pointing out the place of dead body of the child. He saw that the dead body
of the child was near the wall and the accused himself led them to that
place. He deposed that the dead body was of the same child, who was seen
in the company of the accused on 13.05.2017 as the child was wearing the
same clothes as were on the dead body when the accused was roaming
about with the same girl child. In cross-examination, he denied that he has
seen the accused and the deceased from a distance. As per the witness, he
has seen from a distance of 40-50 feet and the age of the boy who was seen
at that time must be around 22-24 years. He denied the suggestion that he
CRRFC-01 CRA-2151 of 2018
23
has not seen the girl with the accused near Mahua tree and that accused has
not pointed out the place of the dead body being kept in concealed
position.
30. From the testimony of Satyavandan Kushwaha (PW-12) it
transpires that the accused was seen with the deceased near the place of
occurrence. The deceased was wearing the same clothes in which her dead
body was found. All the witnesses have their work place close to the place
of occurrence and their presence is natural. It has not been suggested that
any of the witness was not present near the place of occurrence or had
some other motive to depose against the appellant. Thus, the evidence that
the deceased was seen with the appellant near her place of residence at
about 9.00 a.m. and later near the place of occurrence, at around 10.30 –
11.00 a.m. by three other witnesses, namely, Munna Kumar Gupta (PW-5),
Harun Rashid alias Sonu Khan (PW-11) and Satyavandan Kushwaha (PW-
12) wearing the same clothes, which were on the dead body, shows that the
deceased remained in the company of the accused till her death from the
time she was allured near the place of her residence. In this regard,
reference may be made to a Supreme Court judgment rendered in Bodhraj
alias Bodha and others vs. State of Jammu and Kashmir, (2002) 8 SCC
45, wherein, it has been held that circumstantial evidence is not direct to
the point in issue but consists of evidence of various other facts which are
so closely associated with the fact in issue that taken together they form a
chain of circumstances from which the existence of the principal fact can
be legally inferred or presumed. It is apt to reproduce the relevant extracts
of the said judgment, which read, thus:
CRRFC-01 CRA-2151 of 2018
24
“9. Before analyzing factual aspects it may be stated that for a crime
to be proved it is not necessary that the crime must be seen to have
been committed and must, in all circumstances be proved by direct
ocular evidence by examining before the Court those persons who had
seen its commission. The offence can be proved by circumstantial
evidence also. The principal fact or factum probandum may be proved
indirectly by means of certain inferences drawn from factum probans,
that is, the evidentiary facts. To put it differently circumstantial
evidence is not direct to the point in issue but consists of evidence of
various other facts which are so closely associated with the fact in
issue that taken together they form a chain of circumstances from
which the existence of the principal fact can be legally inferred or
presumed.
*** *** ***
14. Sir Alfred Wills in his admirable book Wills’ Circumstantial
Evidence (Chapter VI) lays down the following rules specially to be
observed in the case of circumstantial evidence: (1) the facts alleged
as the basis of any legal inference must be clearly proved and beyond
reasonable doubt connected with the factum probandum, (2) the
burden of proof is always on the party who asserts the existence of
any fact, which infers legal accountability, (3) in all cases, whether of
direct or circumstantial evidence the best evidence must be adduced
which the nature of the case admits, (4) in order to justify the
inference of guilt, the inculpatory facts must be incompatible with the
innocence of the accused and incapable of explanation, upon any
other reasonable hypothesis than that of his guilt, and (5) if there be
any reasonable doubt of the guilt of the accused, he is entitled as of
right to be acquitted.
*** *** ***
31. The last seen theory comes into play where the time gap between
the point of time when the accused and deceased were seen last alive
and when the deceased is found dead is so small that possibility of
any person other than the accused being the author of crime becomes
impossible. It would be difficult in some cases to positively establish
that the deceased was last seen with the accused when there is a long
gap and possibility of other persons coming in between exists. In the
absence of any other positive evidence to conclude that accused and
deceased were last seen together, it would be hazardous to come to a
CRRFC-01 CRA-2151 of 2018
25
conclusion of guilt in those cases. In this case there is positive
evidence that deceased, A-1 and A-2 were seen together by witnesses.
i.e. PWs 14, 15 and 18; in addition to the evidence of PWs l and 2.”
31. Apart from such eye witnesses account in respect of last seen near
the place of residence of the victim and then near the place of recovery of
dead body, the veracity of which could not be shattered in the cross-
examination, the prosecution has led the scientific evidence as well.
32. Dr. B.R. Prajapati (PW-9) and Dr. Nisha Chaturvedi (PW-10), who
conducted the postmortem examination on the person of the deceased,
have deposed that the child was molested in a brutal manner. The hymen
was completely ruptured and there was sign of disbandment outside the
genital part of the deceased. Medical report and testimonies of these two
doctors have clearly established the brutal manner for commission of rape
with the deceased, who was an infant child, as the internal organ of the
deceased was damaged in a most savage and inhuman manner, that caused
grave injuries, which ultimately annihilated her life. The acts of the
accused per se demonstrate mental perversion and inconceivable brutality.
The samples of the blood, vaginal slide and the clothes of the deceased
were taken in possession by the said doctors.
33. Kamlendra Singh Karchuli (PW-22) is the Station House Officer of
Police Station Kotwali, Shahdol. He reached the place of occurrence at
around 12.00 noon on 15.05.2017. He stated that Rajni Nagbhire (PW-21)
has interrogated the accused in his presence. He has prepared the site plan
(Ex.P-7). The dead body was taken in possession after giving notice Ex.P-
4. He found that the eyes of the deceased were protruding and there were
CRRFC-01 CRA-2151 of 2018
26
injuries on her neck. The genital area of the victim was seriously injured
and had maggots. From the dead body it transpired that the child was killed
in the process of rape. The dead body was sent for postmortem
examination vide memo Ex.P-16. The accused was arrested vide memo
Ex.P-15 and was sent for medical examination vide request Ex.P-24. The
pubic hair were sent to FSL Sagar vide Ex P-20 on 20.5.2017; sealed
packet of underwear of the deceased, sealed packet of vaginal slide, sample
blood of the accused, underwear of the accused and semen slide of the
accused were sent to FSL, Sagar vide Ex P-21. Ex P-22 is the receipt dated
17.5.2017 by the FSL, Sagar of the Articles sent on 16.5.2017. The pubic
hair of the accused were sent to Forensic Science Laboratory, Sagar; the
report is Ex.P-29. Such report is that no semen was found in the samples
sent.
34. PW-22, Kamlendra Singh Karchuli, also requested for a sample for
DNA profile of the accused vide Ex.P-25 on 16.5.2017. The witness also
sought permission of the Superintendent of Police, Shahdol on 16.05.2017
vide Ex.P-26 for DNA profile of the accused. Such request was forwarded
to Director General of Police on 16.5.2017 itself by the Superintendent of
Police, Shahdol vide Ex.P-27.
35. The accused was produced before the doctor in the Civil Hospital
for blood sample. The identification form is Ex.P-12., which bears
signatures, thumb impressions and photograph of the accused. Such form
has two witnesses one of them is PW-22. The technician has drawn blood
sample of Vinod alias Rahul Chouhtha after identifying him. The blood
sample for DNA profile was sent after certification by the Superintendent
CRRFC-01 CRA-2151 of 2018
27
of Police, Shahdol vide Ex.P-28 on 16.5.2017 bearing the signature of Shri
Shiv Kumar Varma, In-charge Superintendent of Police. The report is
Ex.P-30.
36. The clothes of the deceased and the underwear and the blood
sample of the accused were subjected to DNA examination. The Y-
Chromosome from 24 DNA profile of the accused have matched with 10
DNA profile from the underwear of the deceased and 10 alleles have
matched with the Y-Chromosomes found on the blood sample of the
appellant. The conclusion of the Forensic Science Laboratory is that it is
the accused who has committed offence against the victim.
37. The argument of the learned counsel for the appellant is that the
report of DNA is not categorical so as to link the appellant with the crime.
We do not find any merit in such argument. Forensic Science Experts, Dr.
Hirak Ranjan Dash and Dr. Anil Kumar Singh who have given the report
Ex.P-30 were not called as witness to stand the cross-examination,
therefore, in terms of Section 293 of the CrPC, the report is not open to
question as the defence had the opportunity to cross-examine the expert.
However, the argument of the learned counsel for the appellant proceeds
on the basis that even the report does not prove that the crime has been
committed by the appellant. We have examined the argument raised by the
learned counsel for the appellant.
38. The Supreme Court in Phool Kumar vs. Delhi Administration,
AIR 1975 SC 905, has held that the report of an expert is admissible in
evidence under Section 293 of the CrPC and can be doubted only by cross-
CRRFC-01 CRA-2151 of 2018
28
examination of the witness. In a judgment reported as Bhagwan Das and
another vs. State of Rajasthan, AIR 1957 SC 589, the Supreme Court
held that the opinion of an expert cannot be discarded on the basis of books
on Medical Jurisprudence unless the passages which are sought to be
discredited in the opinion of the expert are put to him. The Court held as
under:-
“13. The learned Sessions Judge was of the opinion that the evidence
of the doctor P. W. 11 made the story that Shivlal could walk for a
little distance upto the Khala of Hukma or was able to talk so as to
make a dying declaration, improbable. But the learned Judges of the
High Court disposed of this matter by saying that the doctor was
comparatively young and that his statement was not in accord with the
opinion expressed in books on Medical Jurisprudence by authors like
Modi and Lyon. But it cannot be said that the opinions of these
authors were given in regard to circumstances exactly similar to those
which arose in the case now before us nor is this a satisfactory way of
disposing of the evidence of an expert unless, the passages which are
sought to discredit his opinion are put to him. This Court in Sundarlal
v. State of Madhya Pradesh, A.I.R. 1954 S.C. 28(A), disapproved of
Judges drawing conclusions adverse to the accused by relying upon
such passages in the absence of their being put to medical witnesses.
The learned Judges of the High Court were, therefore, in error in
accepting the testimony of these witnesses in support of the
correctness of the two dying declarations nor could the statement of
the deceased alleged to have been made in the circumstances of this
case be considered sufficient to support the conviction of the accused.
The recovery of the kassi is a wholly neutral circumstance because it
has not been proved that it belonged to Bhagwandas.”
39. The Supreme Court in the case of Dharam Deo Yadav vs. State of
Uttar Pradesh, (2014) 5 SCC 509 noticed the dilemma that many a times
reliable, trustworthy, credible witnesses to the crime seldom come forward
to depose before the court and even the hardened criminals get away from
CRRFC-01 CRA-2151 of 2018
29
the clutches of law. Therefore, the Judiciary should be equipped to
understand and deal with the forensic science which is free from the
infirmities. The Court held as under:-
“Expert scientific evidence:
*** *** ***
31. Scientific evidence encompasses the so-called hard science, such
as physics, chemistry, mathematics, biology and soft science, such as
economics, psychology and sociology. Opinions are gathered from
persons with scientific, technical or other specialized knowledge,
whose skill, experience, training or education may assist the Court to
understand the evidence or determine the fact in issue. Many a times,
the Court has to deal with circumstantial evidence and scientific and
technical evidence often plays a pivotal role. Sir Francis Bacon, Lord
Chancellor of England, in his Magnum Opus put forth the first theory
of scientific method. Bacon’s view was that a scientist should be
disinterested observer of nature, collecting observations with a mind
cleansed of harmful preconceptions, that might cause error to creep
into the scientific record. Distancing themselves from the theory of
Bacon, the US Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 125 L Ed 2d 469::509 U.S. 579 (1993), held as
follows:-
“Science is not an encyclopedic body of knowledge about
the universe. Instead, it represents a process for proposing
and refining theoretical explanations about the world that
are subject to further testing and refinement.”
*** *** ***
DNA and identity of skeleton
*** *** ***
34. The counsel appearing for the appellant, as already indicated,
questioned the reliability of DNA report and its admissibility in
criminal investigation. It was pointed out that DNA is known for
being susceptible to damage from moisture, heat, infrared radiation
etc. and that may degrade the sample of DNA. Further, it was pointed
out that during carriage, during its storage at police stations or
laboratories, it is prone to contamination and, therefore, the extent of
absoluteness can never be attributed to DNA results.
CRRFC-01 CRA-2151 of 2018
30
*** *** ***
36. The DNA stands for deoxyribonucleic acid, which is the
biological blueprint of every life. DNA is made-up of a double
standard structure consisting of a deoxyribose sugar and phosphate
backbone, cross-linked with two types of nucleic acids referred to as
adenine and guanine, purines and thymine and cytosine pyrimidines.
The most important role of DNA profile is in the identification, such
as an individual and his blood relations such as mother, father,
brother, and so on. Successful identification of skeleton remains can
also be performed by DNA profiling. DNA usually can be obtained
from any biological material such as blood, semen, saliva, hair, skin,
bones, etc. The question as to whether DNA tests are virtually
infallible may be a moot question, but the fact remains that such test
has come to stay and is being used extensively in the investigation of
crimes and the Court often accepts the views of the experts, especially
when cases rest on circumstantial evidence. More than half a century,
samples of human DNA began to be used in the criminal justice
system. Of course, debate lingers over the safeguards that should be
required in testing samples and in presenting the evidence in Court.
DNA profile, however, is consistently held to be valid and reliable,
but of course, it depends on the quality control and quality assurance
procedures in the laboratory. Close relatives have more genes in
common than individuals and various procedures have been proposed
for dealing with a possibility that true source of forensic DNA is of
close relative. So far as this case is concerned, the DNA sample got
from the skeleton matched with the blood sample of the father of the
deceased and all the sampling and testing have been done by experts
whose scientific knowledge and experience have not been doubted in
these proceedings. We have, therefore, no reason to discard the
evidence of PW19, PW20 and PW21. Prosecution has, therefore,
succeeded in showing that the skeleton recovered from the house of
the accused was that of Diana daughter of Allen Jack Routley and it
was none other than the accused, who had strangulated Diana to death
and buried the dead body in his house.
37. The accused, in his examination under Section 313 CrPC, had
denied the prosecution case completely, but the prosecution has
succeeded in proving the guilt beyond reasonable doubt. Often, false
answers given by the accused in Section 313 CrPC statement may
CRRFC-01 CRA-2151 of 2018
31
offer an additional link in the chain of circumstances to complete the
chain. See Anthony D’souza v. State of Karnataka (2003) 1 SCC 259.
We are, therefore, of the considered view that both the trial Court as
well as the High Court have correctly appreciated the oral and
documentary evidence in this case and correctly recorded the
conviction and we are now on sentence. ”
40. The Supreme Court in a judgment reported as (2010) 9 SCC 747
(Santosh Kumar Singh vs. State through CBI) has held that DNA report
must be accepted as scientifically accurate and is an exact science. It is
further held that it would be a dangerous doctrine to lay down that report of
an expert witness could be brushed aside by making reference to some text
on that subject without such text being put to the expert. The court cannot
usurp the function of an expert. The relevant extracts of the said decision
are reproduced as under:-
“68. It is significant that not a single question was put to PW Dr.
Lalji Singh as to the accuracy of the methodology or the procedure
followed for the DNA profiling. The trial court has referred to a large
number of textbooks and has given adverse findings on the accuracy
of the tests carried out in the present case. We are unable to accept
these conclusions as the court has substituted its own opinion ignoring
the complexity of the issue on a highly technical subject, more
particularly as the questions raised by the court had not been put to
the expert witnesses. In Bhagwan Das vs. State of Rajasthan AIR
1957 SC 589 it has been held that it would be a dangerous doctrine to
lay down that the report of an expert witness could be brushed aside
by making reference to some text on that subject without such text
being put to the expert.
*** *** ***
71. We feel that the trial court was not justified in rejecting the DNA
Report, as nothing adverse could be pointed out against the two
experts who had submitted it. We must, therefore, accept the DNA
report as being scientifically accurate and an exact science as held by
this Court in Smt. Kamti Devi v. Poshi Ram, (2001) 5 SCC 311. In
CRRFC-01 CRA-2151 of 2018
32arriving at its conclusions the trial court was also influenced by the
fact that the semen swabs and slides and the blood samples of the
appellant had not been kept in proper custody and had been tampered
with, as already indicated above. We are of the opinion that the trial
court was in error on this score. We, accordingly, endorse the
conclusions of the High Court on Circumstance 9.”
41. Still further, in a judgment reported as (2014) 2 SCC 576 (Nandlal
Wasudeo Badwaik vs. Lata Nandlal Badwaik and another), the
Supreme Court explained what exactly the DNA test is. In the said case,
the appellant disputed the claim of the wife for maintenance of daughter on
the ground that she is not his daughter. The Court held as under:-
“13. Before we proceed to consider the rival submissions, we deem
it necessary to understand what exactly DNA test is and ultimately its
accuracy. All living beings are composed of cells which are the
smallest and basic unit of life. An average human body has trillion of
cells of different sizes. DNA (Deoxyribonucleic Acid), which is found
in the chromosomes of the cells of living beings, is the blueprint of an
individual. Human cells contain 46 chromosomes and those 46
chromosomes contain a total of six billion base pair in 46 duplex
threads of DNA. DNA consists of four nitrogenous bases – adenine,
thymine, cytosine, guanine and phosphoric acid arranged in a regular
structure. When two unrelated people possessing the same DNA
pattern have been compared, the chances of complete similarity are 1
in 30 billion to 300 billion. Given that the Earth’s population is about
5 billion, this test shall have accurate result. It has been recognized by
this Court in the case of Kamti Devi (supra) that the result of a
genuine DNA test is scientifically accurate. It is nobody’s case that
the result of the DNA test is not genuine and, therefore, we have to
proceed on an assumption that the result of the DNA test is accurate.
The DNA test reports show that the appellant is not the biological
father of the girl-child.
*** *** ***
19. The husband’s plea that he had no access to the wife when the
child was begotten stands proved by the DNA test report and in the
face of it, we cannot compel the appellant to bear the fatherhood of a
CRRFC-01 CRA-2151 of 2018
33child, when the scientific reports prove to the contrary. We are
conscious that an innocent child may not be bastardized as the
marriage between her mother and father was subsisting at the time of
her birth, but in view of the DNA test reports and what we have
observed above, we cannot forestall the consequence. It is denying the
truth. “Truth must triumph” is the hallmark of justice.”
42. In the case of Mukesh and another vs. State (NCT of Delhi) and
others, (2017) 6 SCC 1, the Supreme Court was examining the gruesome
murder of a young Nirbhaya who was raped and killed in a moving bus. In
respect of DNA profile, the Court held as under:-
“455. Before considering the above findings of DNA analysis
contained in tabular form, let me first refer to what is DNA, the
infallibility of identification by DNA profiling and its accuracy with
certainty. DNA – De-oxy-ribonucleic acid, which is found in the
chromosomes of the cells of living beings, is the blueprint of an
individual. DNA is the genetic blueprint of life and is virtually
contained in every cell. No two persons, except identical twins have
ever had identical DNA. DNA profiling is an extremely accurate way
to compare a suspect’s DNA with crime scene specimens, victim’s
DNA on the blood-stained clothes of the accused or other articles
recovered, DNA testing can make a virtually positive identification
when the two samples match. A DNA finger print is identical for
every part of the body, whether it is the blood, saliva, brain, kidney or
foot on any part of the body. It cannot be changed; it will be identical
no matter what is done to a body. Even relatively minute quantities of
blood, saliva or semen at a crime scene or on clothes can yield
sufficient material for analysis. The Experts opine that the
identification is almost hundred per cent precise. Using this i.e.
chemical structure of genetic information by generating DNA profile
of the individual, identification of an individual is done like in the
traditional method of identifying finger prints of offenders. Finger
prints are only on the fingers and at times may be altered. Burning or
cutting a finger can change the make of the finger print. But DNA
cannot be changed for an individual no matter whatever happens to a
body.
CRRFC-01 CRA-2151 of 2018
34
456. We may usefully refer to Advanced Law Lexicon, 3rd Edition
Reprint 2009 by P. Ramanatha Aiyar which explains DNA as under:-
“DNA.- Deoxyribonucleic acid, the nucleoprotein of
chromosomes. The double-helix structure in cell nuclei
that carries the genetic information of most living
organisms. The material in a cell that makes up the genes
and controls the cell. (Biological Term)DNA finger printing- A method of identification
especially for evidentiary purposes by analyzing and
comparing the DNA from tissue samples. (Merriam
Webster)”
In the same Law Lexicon, learned author refers to DNA identification
as under:
DNA identification- A method of comparing a person’s
deoxyribonucleic acid (DNA) – a patterned chemical
structure of genetic information – with the DNA in a
biological specimen (such as blood, tissue, or hair) to
determine if the person is the source of the specimen.
Also termed DNA finger printing; genetic finger printing
(Black, 7th Edition, 1999).
457. DNA evidence is now a predominant forensic technique for
identifying criminals when biological tissues are left at the scene of
crime or for identifying the source of blood found on any articles or
clothes etc. recovered from the accused or from witnesses. DNA
testing on samples such as saliva, skin, blood, hair or semen not only
helps to convict the accused but also serves to exonerate. The
sophisticated technology of DNA finger printing makes it possible to
obtain conclusive results. Section 53A Cr.P.C. is added by the Code of
Criminal Procedure (Amendment) Act, 2005. It provides for a detailed
medical examination of accused for an offence of rape or attempt to
commit rape by the registered medical practitioners employed in a
hospital run by the Government or by a local authority or in the
absence of such a practitioner within the radius of 16 kms. from the
place where the offence has been committed by any other registered
medical practitioner.
458. Observing that DNA is scientifically accurate and exact science
and that the trial court was not justified in rejecting DNA report, in
CRRFC-01 CRA-2151 of 2018
35
Santosh Kumar Singh v. State (2010) 9 SCC 747, the Court held as
under:
* ** *** ***
461. As discussed earlier, identification by DNA genetic finger print is
almost hundred per cent precise and accurate. The DNA profile
generated from the blood-stained clothes of the accused and other
articles are found consistent with the DNA profile of the victim and
DNA profile of PW-1; this is a strong piece of evidence against the
accused. In his evidence, PW-45 Dr. B.K. Mohapatra has stated that
once DNA profile is generated and found consistent with another
DNA profile, the accuracy is hundred per cent and we find no reason
to doubt his evidence. As pointed out by the Courts below, the counsel
for the defence did not raise any substantive ground to rebut the
findings of DNA analysis and the findings through the examination of
PW-45. The DNA report and the findings thereon, being scientifically
accurate clearly establish the link involving the accused persons in the
incident.”
43. A three Judge Bench of the Supreme Court in Sunil vs. State of
Madhya Pradesh, (2017) 4 SCC 393 has considered an argument that if
DNA testing is not proved by the prosecution; therefore, it has failed to
prove its case beyond reasonable doubt. It was held that positive result of
DNA test would constitute clinching evidence against the accused. If,
however, result of test is negative the weight of other material evidence on
record will still have to be considered. The relevant extract of the decision
reads as under:-
“4. From the provisions of Section 53-A of the Code and the decision
of this Court in Krishan Kumar Malik v. State of Haryana (2011) 7
SCC 130 it does not follow that failure to conduct the DNA test of the
samples taken from the accused or prove the report of DNA profiling
as in the present case would necessarily result in the failure of the
prosecution case. As held in Krishan Kumar (para 44), Section 53-A
really “facilitates the prosecution to prove its case”. A positive result
of the DNA test would constitute clinching evidence against the
accused if, however, the result of the test is in the negative i.e.
CRRFC-01 CRA-2151 of 2018
36favouring the accused or if DNA profiling had not been done in a
given case, the weight of the other materials and evidence on record
will still have to be considered. It is to the other materials brought on
record by the prosecution that we may now turn to.”
44. Therefore, the opinion of the Forensic Science Expert that Y-
Chromosome of DNA profile of the appellant matches with the DNA
profile from the underwear of the victim and the vaginal slide is conclusive
proof that the accused is the one who violated four years old girl.
45. The argument of the learned counsel for the appellant that as per
the opinion of Dr. B.R. Prajpati (PW-9) and Dr. Nisha Chaturvedi (PW-10)
the time elapsed between the death of the deceased and postmortem was 2-
3 days and that since the postmortem was conducted around 2.10 p.m. on
15.05.2017, therefore, the statement of the witnesses that they have seen
the accused with the victim around 11.30 a.m. – 12.00 noon on 13.05.2017
is not supported by medical evidence as the time of death will be around
2.00 p.m. on 13.05.2017. We do not find any merit in the said argument.
The approximation of time of death is not approximation of the hours of
the day as well. The report of the doctors is based upon approximate time
gap between the death and the postmortem. Since the very nature of the
opinion of the time is approximate, therefore, it cannot be said with
certainty that the death has occurred around 2.00 p.m. and not as per the
statement of last seen evidence of the witnesses.
46. In respect of an argument that in the marg (death) intimation, the
father of the girl has stated that they reached Gheebada while searching for
their daughter. Such statement is recorded at 12.35 p.m. whereas the dead
body was recovered at 12.10 p.m. in pursuance to disclosure statement
CRRFC-01 CRA-2151 of 2018
37
made at 11.50 a.m. Such statement of the father of the girl that they
reached the place of occurrence while searching for their daughter cannot
be inferred to mean that they reached the place of occurrence uninformed
by the police, more so, when the statement of the father as PW-1 has not
been questioned in this respect.
47. In the light of the evidence discussed above, the marg intimation
(Ex.P-3) is not the intimation of recovery of dead body but the statement of
the father of the victim that they have reached Gheebada in search of the
dead body. It is of no inference that the dead body was already known to
the father of the victim. In the statement of Kallu Kahar (PW-1) on oath,
the witness is categorical that the dead body was recovered in pursuance to
the disclosure statement given by the appellant. Still further, marg
intimation (Ex.P-3) is a prior statement given by the witness. Therefore,
the same was required to be confronted if the statement of the witness on
oath was at a variance with the statement made earlier but no such attempt
as been made. Therefore, the statement on oath in Court would be relevant
to appreciate the evidence of the prosecution.
48. Kallu Kahar, father of the girl appeared as PW-1. He has proved
the missing report Ex.P-1 on the basis of which the report Ex.P-2 was
registered. He has given photograph of his daughter wearing frock. He
deposed that on 15.05.2017, he got information from the police station that
a dead body is lying behind the bus stand. Then, he and his wife reached
Gheebada behind the bus stand. He reached the place of occurrence and
found the dead body and after removal of the leaves etc. he found a maggot
infected dead body of his daughter. His daughter was wearing T-shirt and
CRRFC-01 CRA-2151 of 2018
38
underwear. Entire body was swollen and both eyes were protruding. He
further deposed that marg intimation (Ex.P-3) was recorded at the place of
occurrence and that he is a witness of panchnama (Ex.P-4). He identified
the dead body of his daughter in the hospital as well. In cross-examination,
he deposed that he came to reside in the house in his occupation about two
months back. He denied the suggestion that there are 15 rooms which are
given on rent. The witness has deposed that there are only three rooms
which are given by the landlady on rent. He deposed that he went to Police
Station Shahdol at about 9 to 12 p.m. on 13.05.2017 when his report was
lodged. Till then he was unable to locate his daughter. Prior to the house in
question, he was residing near bus stand in the house of Kishan doctor. He
studied up to Class-5th and signs in English and Hindi. He denied the
suggestion that he has gone to Gheebada a day earlier than the day on
which the dead body was recovered from Gheebada. He further denied the
suggestion that he has given report to the police after recovery of dead
body. He deposed that they must have reached Gheebada at around 11.00
a.m. He denied the suggestion that dead body was taken out by the police
before he reached the place of occurrence. The police informed him on
phone that the dead body is lying there. He went to the place of occurrence
on bicycle whereas he sent his wife on an auto.
49. Geeta Kahar, the mother of the victim, has appeared as PW-3. She
deposed that her husband came at 3.30 p.m. on 13.05.2017 and she along
with her husband went to the house of the accused, who was trembling. He
stated that he does not know the child. On 15.05.2017, she has gone to
Gheebada along with police officials where she has seen her daughter
CRRFC-01 CRA-2151 of 2018
39
lying dead, eyes protruding and limbs swollen. From the sight of the dead
body she could make out that she has been raped. Her genitals were
completely torn. In cross-examination, she deposed that she had gone to
Jaithari and came back by a train at around 10.30 a.m. She deposed that the
child was left with the landlady only for a day and that the child was never
left with the landlady earlier. The girl would go to Aanganwadi which is
near the place of her house by herself. She denied the suggestion that she
and her husband have seen the dead body at Gheebada earlier. She deposed
that she went to Gheebada along with the police alone.
50. From the testimony of the father and mother of the child
(deceased), it has unequivocally come on record that they have gone to
Gheebada, the place where the dead body was kept concealed, after the
dead body was pointed out by the accused and not earlier. The dead body
came to the notice of the police or to the near relations only after the same
was disclosed to have been kept concealed in the manner disclosed by the
appellant.
51. In respect of an argument that Rajni Nagbhire (PW-21) has
extracted the statement from the accused under coercion is again not made
out. The expression in the statement that she asked with force does not
necessarily mean the extraction of statement after thrashing the witness but
when the witness was confronted, the witness gave the disclosure
statement. Still further, Rajni Nagbhire (PW-21) has not been cross-
examined on the question that what she meant by use of words “tksj
tcjnLrh “.
CRRFC-01 CRA-2151 of 2018
40
52. Still further, several injuries on the private parts of the accused and
presence of Smegma on the private part of the appellant shows that
appellant had intercourse with child and that too forcibly. Dr. S.D. Kanwar
(PW-4) has denied that the injuries on the private part of the accused could
be by scratching by the person. Therefore, the non-explanation of the
injuries on the private part of the appellant and on his person shows that
the appellant has subjected the young child of four years to his brute force
and lust.
53. The accused in his statement under Section 313 of the CrPC has
admitted his photograph on Ex.P-12 though denied the signature on the
said document. In response to question No.92 that the blood of the accused
was taken for DNA profiling in the presence of Kamlendra Singh, Station
House Officer and Technician Pandey, he admitted that his blood sample
was taken. In respect of question No.128, that Ex.P-25 which is a request
to the Medical Officer, District Hospital, Shahdol for DNA profiling bears
his signature, he admitted that his blood sample was taken. In respect of
another question No.131, regarding identification form Ex.P-12, he
admitted his photograph on the document. In respect of question No.143 as
to why the witnesses are deposing against him, the answer is that on
account of enmity over taking water. In respect of question No.145 as to
whether he would like to say anything, the answer is that he had gone to
Narouja in a marriage and that he was not present in the area. He has not
committed any crime and has been implicated on account of enmity.
Thus, the statement of the accused is of alibi that he was not at the
place of occurrence. However, the accused has not produced any evidence
CRRFC-01 CRA-2151 of 2018
41
as to who was getting married at Narouja and that he was, in fact, at
Narouja. Therefore, on the basis of the prosecution evidence consisting of
last seen at the time when child went missing in the morning around 9
O’clock; last seen near the vicinity of the place of crime; recovery of dead
body on the basis of disclosure statement of the accused; injuries on the
person of the accused as well as the report of DNA, all this evidence
conclusively proves that it is the appellant, who has violated the victim and
then killed her.
54. The question now arises as to whether the sentence ordered by the
learned Trial Court upon the appellant of death by hanging warrants
confirmation or not.
55. It is a horrendous crime when a child of four years is violated by a
person, who is living in the close vicinity of the family of the child and
thus, was known to the child. He prompted the child to come with him so
as to take her to her father and then violated and killed her. The Supreme
Court in a judgment rendered in Shankar Kisanrao Khade vs. State of
Maharashtra, (2013) 5 SCC 546, examined the entire case law where the
penalty of death sentence was set aside in the case of an offence under
Section 376 of IPC. The Court laid down the aggravating circumstances
called “crime test”, mitigating circumstances called “criminal test” and
“the rarest of rare cases test”. The Court noticed that total 7112 cases of
child rape were reported in the country during 2011. The State of Madhya
Pradesh has reported highest number of cases i.e. 1262. However, the
situation has not improved even after more than five years, A report on
“Crime in India” in the year 2016 published by National Crime Records
CRRFC-01 CRA-2151 of 2018
42
Bureau, Government of India, provides information about all the FIRs
registered under the Indian Penal Code and Special Local Laws (SLL)
by the police of 36 States/UTs. As per such report, 19765 are the cases of
child rape under Section 376 of IPC and Section 4 and 6 of POCSO Act.
The highest number of cases in this category was again in State of Madhya
Pradesh being 2467. The relevant extract from the report reads as under:-
TABLE 4A.2(ii)
SLL Crimes Against Children – 2016Protection of Children from Sexual Offences Act (POCSO) r/w
Section 376, 354, 509 IPC
Protection of Child Rape (Sec 4 Sexual Assault of
S. Children from 6 of POCSO Children (Section 8
No. State/UT Sexual Offences Act Act)/Section 376 10 of POCSO
(Total) IPC) Act)/Section 354 IPC)
I V R I V R I V R
39 40 41 39A 40A 41A 39B 40B 41B
STATES:
1……… — — — — — — — — —
14. Madhya 4717 4732 15.7 2467 2479 8.1 2106 2109 6.8
Pradesh
15. Maharashtra 4815 4885 12.7 2292 2333 6.1 2370 2396 6.3
……… — — — — — — — — —
27. Uttar Pradesh 4954 4954 5.6 2115 2115 2.4 2652 2652 3.0
……. — — — — — — — — —
Total (All India) 36022 36321 8.1 19765 19920 4.4 12226 12329 2.7
56. In view of the above, the issue is required to be examined as to
whether the imposition of death penalty will deter the prospecting
offenders from indulging in horrendous offence of rape and/or murder.
57. In a Judgment reported as (2011) 3 SCC 85 (B.A. Umesh vs.
Registrar General, High Court of Karnataka) the imposition of death
sentence was maintained recording the following findings:
“83. On the question of sentence we are satisfied that the extreme
depravity with which the offences were committed and the merciless
manner in which death was inflicted on the victim, brings it within the
category of the rarest of rare cases which merits the death penalty, as
CRRFC-01 CRA-2151 of 2018
43awarded by the Trial Court and confirmed by the High Court. None of
the mitigating factors as were indicated by this Court in Bachan Singh
v. State of Punjab (1980) 2 SCC 684 or in Machhi Singh v. State of
Punjab, (1983) 3 SCC 470 are present in the facts of the instant case.
The appellant even made up a story as to his presence in the house on
seeing P.W.2 Suresh, who had come there in the meantime. Apart
from the above, it is clear from the recoveries made from his house
that this was not the first time that he had committed crimes in other
premises also, before he was finally caught by the public two days
after the present incident, while trying to escape from the house of
one Seeba where he made a similar attempt to rob and assault her and
in the process causing injuries to her.”
58. Review petition was dismissed by circulation vide order dated
07.09.2011. Subsequently, another review petitions were filed, which were
decided vide order dated 3rd October, 2016 in judgment reported as (2017)
4 SCC 124 (B.A. Umesh vs. Registrar General, High Court of
Karnataka). The Court held as under:-
“23. Therefore, on careful comparison of aggravating and mitigating
circumstances in the present case, as above, and keeping in view the
principle of law laid down by this Court on the point, we are of the
firm opinion that the aggravating circumstances are grave and far
more serious as against the mitigating circumstances pointed out on
behalf of the petitioner. As such, even after open hearing, we are not
inclined to allow the review petitions or modify the judgment and
order passed by this Court in B.A. Umesh v. High Court of Karnataka
(2011) 3 SCC 85 dismissed by this Court on 1-2-2011. Accordingly,
Review Petitions (Criminal) Nos. 135-36 of 2011 stand dismissed.
The criminal miscellaneous petitions stand disposed of.”
59. A three Judge Bench of the Supreme Court in a judgment reported
as (2015) 1 SCC 253 (Vasanta Sampat Dupare vs. State of
Maharashtra) maintained the death sentence when it was held as under:-
“58. Presently, we shall proceed to dwell upon the manner in which
CRRFC-01 CRA-2151 of 2018
44
the crime was committed. Materials on record clearly reveal that the
appellant was well acquainted with the inhabitants of the locality and
as is demonstrable he had access to the house of the father of the
deceased and the children used to call him “uncle”. He had lured the
deceased to go with him to have chocolates. It is an act of taking
advantage of absolute innocence. He had taken the deceased from
place to place by his bicycle and eventually raped her in a brutal
manner, as if he had the insatiable and ravenous appetite. The injuries
caused on the minor girl are likely to send a chill in the spine of the
society and shiver in the marrows of human conscience. He had
battered her to death by assaulting her with two heavy stones. The
injured minor girl could not have shown any kind of resistance. It is
not a case where the accused had a momentary lapse. It is also not a
case where the minor child had died because of profuse bleeding due
to rape but because of the deliberate cruel assault by the appellant.
After the savage act was over, the coolness of the appellant is evident,
for he washed the clothes on the tap and took proper care to hide
things. As is manifest, he even did not think for a moment the trauma
and torture that was caused to the deceased. The gullibility and
vulnerability of the four year girl, who could not have nurtured any
idea about the maladroitly designed biological desires of this nature,
went with the uncle who extinguished her life spark. The barbaric act
of the appellant does not remotely show any concern for the precious
life of a young minor child who had really not seen life. The
criminality of the conduct of the appellant is not only depraved and
debased, but can have a menacing effect on the society. It is
calamitous.
59. In this context, we may fruitfully refer to a passage from Shyam
Narain V. State (NCT of Delhi), (2013) 7 SCC 77, wherein it has been
observed as follows:
“1. The wanton lust, vicious appetite, depravity of
senses, mortgage of mind to the inferior endowments of
nature, the servility to the loathsome beast of passion and
absolutely unchained carnal desire have driven the
appellant to commit a crime which can bring in a
“tsunami” of shock in the mind of the collective, send a
chill down the spine of the society, destroy the civilised
stems of the milieu and comatose the marrows of
CRRFC-01 CRA-2151 of 2018
45sensitive polity”.
In the said case, while describing the rape on an eight year old girl,
the Court observed: (Shyam Narain Case, SCC p.88, para 26)
“26…. Almost for the last three decades, this Court has
been expressing its agony and distress pertaining to the
increased rate of crimes against women. The eight year
old girl, who was supposed to spend time in cheerfulness,
was dealt with animal passion and her dignity and purity
of physical frame was shattered. The plight of the child
and the shock suffered by her can be well visualised. The
torment on the child has the potentiality to corrode the
poise and equanimity of any civilised society. The age-old
wise saying that “child is a gift of the providence” enters
into the realm of absurdity. The young girl, with efflux of
time, would grow with a traumatic experience, an
unforgettable shame. She shall always be haunted by the
memory replete with heavy crush of disaster constantly
echoing the chill air of the past forcing her to a state of
nightmarish melancholia. She may not be able to assert
the honour of a woman for no fault of hers.”
60. In the case at hand, as we find, not only was the rape committed
in a brutal manner but murder was also committed in a barbaric
manner. The rape of a minor girl child is nothing but a monstrous
burial of her dignity in the darkness. It is a crime against the holy
body of a girl child and the soul of the society and such a crime is
aggravated by the manner in which it has been committed. The nature
of the crime and the manner in which it has been committed speaks
about its uncommonness. The crime speaks of depravity, degradation
and uncommonality. It is diabolical and barbaric. The crime was
committed in an inhuman manner. Indubitably, these go a long way to
establish the aggravating circumstances.
61. We are absolutely conscious that mitigating circumstances are to
be taken into consideration. Learned counsel for the appellant
pointing out the mitigating circumstances would submit that the
appellant is in his mid fifties and there is possibility of his
reformation. Be it noted, the appellant was aged about forty-seven
years at the time of commission of the crime. As is noticeable, there
CRRFC-01 CRA-2151 of 2018
46
has been no remorse on the part of the appellant. There are cases
when this Court has commuted the death sentence to life finding that
the accused has expressed remorse or the crime was not pre-
meditated. But the obtaining factual matrix when unfolded stage by
stage would show the premeditation, the proclivity and the rapacious
desire. Learned counsel would submit that the appellant had no
criminal antecedents but we find that he was a history-sheeter and had
number of cases pending against him. That alone may not be
sufficient. The appalling cruelty shown by him to the minor girl child
is extremely shocking and it gets accentuated, when his age is taken
into consideration. It was not committed under any mental stress or
emotional disturbance and it is difficult to comprehend that he would
not commit such acts and would be reformed or rehabilitated. As the
circumstances would graphically depict, he would remain a menace to
society, for a defenceless child has become his prey. In our considered
opinion, there are no mitigating circumstances.
62. As we perceive, this case deserves to fall in the category of rarest
of the rare cases. It is inconceivable from the perspective of the
society that a married man aged about two scores and seven make a
four year minor innocent girl child the prey of his lust and
deliberately causes her death. A helpless and defenceless child gets
raped and murdered because of the acquaintance of the appellant with
the people of the society. This is not only betrayal of an individual
trust but destruction and devastation of social trust. It is perversity in
its enormity. It irrefragably invites the extreme abhorrence and
indignation of the collective. It is an anathema to the social balance.
In our view, it meets the test of rarest of the rare case and we
unhesitatingly so hold.”
60. The review petition against the said order was dismissed on 3 rd
May, 2017 in a judgment reported as (2017) 6 SCC 631 (Vasanta Sampat
Dupare vs. State of Maharashtra), wherein, the Court observed as
under:-
“20. It is thus well settled, “the Court would consider the cumulative
effect of both the aspects (namely aggravating factors as well as
mitigating circumstances) and it may not be very appropriate for the
CRRFC-01 CRA-2151 of 2018
47Court to decide the most significant aspect of sentencing policy with
reference to one of the classes completely ignoring other classes
under other heads and it is the primary duty of the Court to balance
the two.” Further, “it is always preferred not to fetter the judicial
discretion by attempting to make excessive enumeration, in one way
or another; and that both aspects namely aggravating and mitigating
circumstances have to be given their respective weightage and that the
Court has to strike the balance between the two and see towards
which side the scale/balance of justice tilts.” With these principles in
mind we now consider the present review petition.
21. The material placed on record shows that after the Judgment
under review, the petitioner has completed Bachelors Preparatory
Programme offered by the Indira Gandhi National Open University
enabling him to prepare for Bachelor level study and that he has also
completed the Gandhi Vichar Pariksha and had participated in
drawing competition organized sometime in January 2016. It is
asserted that the jail record of the petitioner is without any blemish.
The matter is not contested as regards Conditions 1, 2, 5, 6 and 7 as
stated in paragraph 206 of the decision in Bachan Singh vs. State of
Punjab (1980) 2 SCC 684 but what is now being projected is that
there is a possibility of the accused being reformed and rehabilitated.
Though these attempts on part of the petitioner are after the Judgment
under review, we have considered the material in that behalf to see if
those circumstances warrant a different view. We have given anxious
consideration to the material on record but find that the aggravating
circumstances namely the extreme depravity and the barbaric manner
in which the crime was committed and the fact that the victim was a
helpless girl of four years clearly outweigh the mitigating
circumstances now brought on record. Having taken an overall view
of the matter, in our considered view, no case is made out to take a
different view in the matter. We, therefore, affirm the view taken in
the Judgment under review and dismiss the present review petitions.”
61. On 05.05.2017, another three Judge Bench judgment in Mukesh
and another (supra) maintained the death sentence on the four accused.
The relevant extracts of the said decision are reproduced as under:-
CRRFC-01 CRA-2151 of 2018
48
“508. In the same judgment in Shankar Kisanrao Khade v. State of
Maharashtra (2013) 5 SCC 546, Madan B. Lokur, J. (concurring)
while elaborately analysing the question of imposing death penalty in
specific facts and circumstances of that particular case, concerning
rape and murder of a minor, discussed the sentencing policy of India,
with special reference to execution of the sentences imposed by the
Judiciary. The Court noted the prima facie difference in the standard
of yardsticks adopted by two organs of the government viz. Judiciary
and the Executive in treating the life of convicts convicted of an
offence punishable with death and recommended consideration of
Law Commission of India over this issue. The relevant excerpt from
the said judgment, highlighting the inconsistency in the approach of
Judiciary and Executive in the matter of sentencing, is as under: (SCC
p.614, para 148)
“148. It seems to me that though the Courts have been
applying the rarest of rare principle, the Executive has
taken into consideration some factors not known to the
Courts for converting a death sentence to imprisonment
for life. It is imperative, in this regard, since we are
dealing with the lives of people (both the accused and the
rape-murder victim) that the Courts lay down a
jurisprudential basis for awarding the death penalty and
when the alternative is unquestionably foreclosed so that
the prevailing uncertainty is avoided. Death penalty and
its execution should not become a matter of uncertainty
nor should converting a death sentence into imprisonment
for life become a matter of chance. Perhaps the Law
Commission of India can resolve the issue by examining
whether death penalty is a deterrent punishment or is
retributive justice or serves an incapacitative goal.”
In Shankar Kisanrao’s case (2013) 5 SCC 546), it was observed by
Madan B. Lokur, J. that Dhananjay Chatterjee’s case [Dhananjaoy
Chatterjee V. State of W.B. (1994) 2 SCC 220] was perhaps the only
case where death sentence imposed on the accused, who was
convicted for rape was executed.
509. Another significant development in the sentencing policy of
India is the ‘victim-centric’ approach, clearly recognised in Machhi
Singh (Supra) [Machhi Singh v. State of Punjab (1983) 3 SCC 470]
CRRFC-01 CRA-2151 of 2018
49
and re-emphasized in a plethora of cases. It has been consistently held
that the courts have a duty towards society and that the punishment
should be corresponding to the crime and should act as a soothing
balm to the suffering of the victim and their family. [Ref: Gurvail
Singh @ Gala and Anr. v. State of Punjab (2013) 2 SCC 713; Mohfil
Khan and Anr. v. State of Jharkhand (2015) 1 SCC 67; Purushottam
Dashrath Borate and Anr. v. State of Maharashtra (2015) 6 SCC 652].
The Courts while considering the issue of sentencing are bound to
acknowledge the rights of the victims and their family, apart from the
rights of the society and the accused. The agony suffered by the
family of the victims cannot be ignored in any case. In Mohfil Khan
(supra), this Court specifically observed that ‘it would be the
paramount duty of the Court to provide justice to the incidental
victims of the crime – the family members of the deceased persons.
510. The law laid down above, clearly sets forth the sentencing policy
evolved over a period of time. I now proceed to analyse the facts and
circumstances of the present case on the anvil of above-stated
principles. To be very precise, the nature and the manner of the act
committed by the accused, and the effect it cast on the society and on
the victim’s family, are to be weighed against the mitigating
circumstances stated by the accused and the scope of their reform, so
as to reach a definite reasoned conclusion as to what would be
appropriate punishment in the present case- ‘death sentence’, life
sentence commutable to 14 years’ or ‘life imprisonment for the rest of
the life’.
*** *** ***
515. In Purushottam Dashrath Borate and Anr. v. State of Maharashtra
(2015) 6 SCC 652, this Court held that age of the accused or family
background of the accused or lack of criminal antecedents cannot be
said to be the mitigating circumstance. It cannot also be considered as
mitigating circumstance, particularly taking into consideration, the
nature of heinous offence and cold and calculated manner in which it
was committed by the accused persons.
516. Society’s reasonable expectation is that deterrent punishment
commensurate with the gravity of the offence be awarded. When the
crime is brutal, shocking the collective conscience of the community,
sympathy in any form would be misplaced and it would shake the
confidence of public in the administration of criminal justice system.
CRRFC-01 CRA-2151 of 2018
50
As held in Om Prakash v. State of Haryana (1999) 3 SCC 19, the
Court must respond to the cry of the society and to settle what would
be a deterrent punishment for what was an apparently abominable
crime.
517. Bearing in mind the above principles governing the sentencing
policy, I have considered all the aggravating and mitigating
circumstances in the present case. Imposition of appropriate
punishment is the manner in which the courts respond to the society’s
cry for justice against the crime. Justice demands that the courts
should impose punishments befitting the crime so that it reflects
public abhorrence of the crime. Crimes like the one before us cannot
be looked with magnanimity. Factors like young age of the accused
and poor background cannot be said to be mitigating circumstances.
Likewise, post-crime remorse and post-crime good conduct of the
accused, the statement of the accused as to their background and
family circumstances, age, absence of criminal antecedents and their
good conduct in prison, in my view, cannot be taken as mitigating
circumstances to take the case out of the category of “the rarest of
rare cases”. The circumstances stated by the accused in their
affidavits are too slender to be treated as mitigating circumstances.
*** *** ***
520. The statistics of the National Crime Records Bureau which I
have indicated in the beginning of my judgment show that despite the
progress made by women in education and in various fields and
changes brought in ideas of women’s rights, respect for women is on
the decline and crimes against women are on the increase. Offences
against women are not a women’s issue alone but, human rights issue.
Increased rate of crime against women is an area of concern for the
law-makers and it points out an emergent need to study in depth the
root of the problem and remedy the same through a strict law and
order regime. There are a number of legislations and numerous penal
provisions to punish the offenders of violence against women.
However, it becomes important to ensure that gender justice does not
remain only on paper.
521. We have a responsibility to set good values and guidance for
posterity. In the words of great scholar, Swami Vivekananda, “the best
thermometer to the progress of a nation is its treatment of its women.”
Crime against women not only affects women’s self esteem and
CRRFC-01 CRA-2151 of 2018
51
dignity but also degrades the pace of societal development. I hope that
this gruesome incident in the capital and death of this young woman
will be an eye-opener for a mass movement “to end violence against
women” and “respect for women and her dignity” and sensitizing
public at large on gender justice. Every individual, irrespective of
his/her gender must be willing to assume the responsibility in fight for
gender justice and also awaken public opinion on gender justice.
Public at large, in particular men, are to be sensitized on gender
justice. The battle for gender justice can be won only with strict
implementation of legislative provisions, sensitization of public,
taking other proactive steps at all levels for combating violence
against women and ensuring widespread attitudinal changes and
comprehensive change in the existing mind set. We hope that this
incident will pave the way for the same.”
62. The review against the said judgment bearing Review Petition
(Crl.) No.570 of 2017 (Mukesh vs. State of NCT of Delhi) stand
dismissed on 09.07.2018.
63. In Deepak Rai etc. vs. State of Bihar, (2013) 10 SCC 421, the
Supreme Court held that the young age of the accused is not a mitigating
circumstance for commutation to life.
64. The death sentence was also maintained by the Supreme Court in
the judgments reported as (2008) 11 SCC 113 (Bantu vs. State of Uttar
Pradesh) and (2009) 6 SCC 667 (Ankush Maruti Shinde and others vs.
State of Maharashtra) and (2015) 6 SCC 632 (Shabnam etc. vs. State of
Uttar Pradesh).
65. Within this Court, a Division Bench in Criminal Reference No.
05/2015 (in Reference received from the First Addl. Sessions Judge,
Maihar v. Sachin Kumar Singhraha) vide judgment delivered on
03.03.2016 has affirmed the death sentence in case of rape of a victim aged
CRRFC-01 CRA-2151 of 2018
52
near-about five years. Another Division Bench of this Court in CRRFC
No.5/2017 (In Reference Received from District Sessions Judge,
Dindori vs. Bhagwani and another) vide judgment delivered on
09.05.2018 has also affirmed the capital punishment awarded to two
accused persons by the Trial Court. In the said case also a girl aged about
11 years was victimized and murdered and the Court expressed concern
over the alarming increase in the recent incidents of child rapes coupled
with the rising anger of the society over rape of minors across the country.
66. In the light of the evidence and the judgments referred to
hereinabove, we find that there is no mitigating circumstance in favour of
the appellant in the present case. The appellant was young unmarried boy
aged 22 years at the time of commission of offence but he breached the
trust of a girl child of four years when he tempted her by offering biscuit to
accompany him to meet her father. He violated her and took her life within
3-4 hours of taking her with him. It is an act of extreme depravity when the
appellant prompted a young child whose only fault was that she believed
the appellant to be her well-wisher. The crime against the girl child are on
rise, therefore, extreme punishment may deter the other criminals
indulging in such crime. Such crime sends shock wave in the society when
it is committed against a girl child. This Court has the social responsibility
to make the citizen of this country know that law cannot come to the rescue
of such person on the basis of humanity. The extreme punishment may
convey a message to these predators that it is not a soft State where the
criminals committing such serious crimes may get reprieve in the guise of
humanity. The humanity is more in danger in the hands of the persons like
CRRFC-01 CRA-2151 of 2018
53
the appellant. Therefore, we find that the capital punishment awarded to
the appellant is one of the rarest of rare cases where the extreme capital
punishment is warranted.
67. In view of the foregoing reasons, we affirm the death sentence
awarded to the appellant by the Trial Court while dismissing the appeal
preferred by the accused against his conviction and sentence. We order
accordingly.
68. Let a copy of this judgment be retained in the file of the connected
criminal appeal.
69. The office is further directed to send a copy of the judgment
forthwith to the Trial Court for taking appropriate action in accordance
with law.
(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGES/
Digitally signed by SACHIN CHAUDHARY
Date: 2018.08.08 11:12:56 +05'30'
