Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Rape Murder Minor Girl DNA Test On High Court Orders Confirms Appellant's Guilt.Directions To DGP, Health Secretary, JTRI To Streamline Investigations
JUDGEMENT TITLE : Akhtar Vs. State Of U.P. On 28/08/2014 By Allahabad High Court
CASE NO : CAPITAL CASES NO. 574 OF 2013
CORAM : Hon'ble Amar Saran,J. And Hon'ble Vijay Lakshmi,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

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Court No. - 46
Case :- CAPITAL CASES No. - 574 Of 2013
Appellant :- Akhtar
Respondent :- State Of U.P.
Counsel For Appellant :- Ajatshatru Pandey,G.S. Chaturvedi
Counsel For Respondent :- Govt. Advocate
Hon'ble Amar Saran, J
Hon'ble Mrs. Vijay Lakshmi, J
(Delivered By Hon'ble Amar Saran, J)
This Capital Appeal Arises From A Judgement Of The
Additional Sessions Judge (Court No. 6), Budaun Dated
31.1.2013 In S.T. No. 505 Of 2012 Whereby The Appellant
Akhtar Has Been Awarded A Sentence Of Death Under Section
302 I.P.C Together With A Fine Of Rs. 25,000/. The Appellant
Akhtar Has Also Been Sentenced To Imprisonment For Life
under Section 376 I.P.C And A Fine Of Rs. 25,000/, And Under
section 201 I.P.C, Appellant Akhtar Has Been Sentenced To 7
years RI And A Fine Of Rs. 7000/. A Death Reference Has Also
been Forwarded To This Court By The Sessions Judge For
confirming The Sentence Of Death Awarded To The Appellant
Akhtar.
We Have Heard Sri G.S. Chaturvedi, Senior Advocate,
assisted By Sri Ajatshatru Pandey For The Appellant And Sri
Akhilesh Singh, Learned Government Advocate Assisted By Sri
R.K. Singh And Sri Anand Tiwari, Learned A.G.As For The State.
Written Arguments Along With Case Law Have Also Been Filed By
the Learned Counsel For The Parties.
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Background And Evidence
The First Information Report Of This Case Was Lodged By
PW-1 Baise Ali, Father Of The Deceased Noor-un Nisha On
4.4.2012 At 8.15 P.m At The Police Station Ujhani. This FIR
alleges That Noor-un Nisha Aged About 12 Years Had Gone To
graze Her Buffaloes In The Afternoon In The Direction Of J.S.
Talkies. When She Did Not Return Till 5.00 P.m Then A Search
was Made For Her By The Informant And Other Residents Of The
Mohalla. At About 6.00 P.M, When The Informant, His Brother
Afzal And Mohalla Neighbours Afzal And Islam Were Crossing
the Lane In Front Of The House Of The Appellant Near Sapra
Guest House, They Saw The Appellant Throwing The Body Of
Noor-un Nisha Out Side His House. The Informant And Other
persons Caught Hold Of The Appellant Akhtar In Mohalla Gaddi
Tola. Noor-un Nisha Had Died And There Was A Round Mark On
her Neck And There Were Injuries On Her Body. With The Help Of
Baise And Afzal , The Appellant Was Brought To The Police
station Where A Report Was Lodged Alleging That The Appellant
Akhtar Had Raped And Murdered Noor-un Nisha On 4.4.2012.
The Case Was Registered At The Police Station At Crime No. 605
of 2012 Under Sections 375, 302, 201 I.P.C In The Presence Of
the Investigating Officer Ashok Kumar Singh.
Inspector Ashok Kumar Singh, P.S. Ujhani Commenced
the Investigation Of The Case. He Arrived At The Spot Along With
SI Raj Bahadur And Female Constable Parul Yadav And Others.
He Directed SI Raj Bahadur To Take Steps For Getting The
inquest Done On The Body Of The Deceased And He Recorded
the Statement Of The Informant. He Prepared The Recovery
memos (Ext. Ka 11) Of Some Black And Henna Coloured Hair
which Were Found Between The Fingers Of Both The Hands Of
the Deceased Noor-un Nisha. He Placed The Hair On A White
paper And Then Placed The Same In A Plastic Box And Sealed
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them After Wrapping The Packet With A Piece Of Cloth. He
inspected The Spot And Got Photographs Taken Of The Body And
the Spot. Thereafter, He Sent The Dead Body For Post-mortem.
He Also Collected The Tiffin Box, Steel Plate, Grass And Grass
leaves Tied With A String. The Said Items Were Wrapped In A
Dupatta Which Were Lying Near The Body. He Also Took Out The
appellant Akhtar From The Police Lockup, Who Is Said To Have
confessed To His Crime. The Appellant Also Agreed To Take The
police To The Place, Where He Had Strangulated The Deceased.
The I.O Thereafter Brought The Appellant Akhtar To The Spot
along With SI Raj Bahadur Rastogi And SI Nareshpal Singh. The
appellant Took The Keys Of His House From His Neighbour Dr.
Netrapal. He Opened The Lock Of His Shop And Climbed Up The
stairs And Opened The Lock Of The Room. He Then Pointed Out
the Bed In The Room, Where He Admitted To Have Committed
the Crime. Then The Room And Bedding Were Examined. On The
bedding, Some Broken Pieces Of Red Coloured Bangles And
long Hair Were Found. The Recovery Memos Of The Hair And
bangles Were Made.
The Post-mortem On The Dead Body Was Conducted By Dr.
Amit Kumar On 4.5.2012 At 2.25 P.m Along With Dr. Harpal
Singh. The Age Of The Deceased Was About 12 Years. Time
since Death Was ¾ Days. It Was An Average Built Body. Rigor
mortis Was Present On All The Four Limbs. Postmortem Staining
was Present On The Dependent Parts. The Mouth And Eyes
were Half Open. Eyes, Face And Neck Were Congested.
Ante-mortem Injuries:
1. Multiple Abrasions Over Front Of Neck In An Area 9 Cm X 4
cm. Varying From Maximum 3 C X 2 Cm To Minimum 1 X 1
cm.
2. Multiple Abrasions Over Back Of Neck Maximum 1.5 X 1
cm, Minimum 1 X 0.5 Cm In An Area Of 7 X 3 Cm. On
dissection Of Neck. Internal Tissue Were Echymosed.
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Trachea Was Found Congested, Hyoid Bone Found
fractured.
3. Lacerated Wound On Tip Of Lower Finger Of Left Hand 0.5 X
0.5 Cm.
4. Multiple Abrasions On Back Of Abdomen Maximum 3 Cm X
2 Cm To Minimum 1 Cm X 0.5 Cm.
5. Contusion On Left Side Of Face 2 X 2 Cm.
6. Abrasion Just Below Right Knee 2 X 1 Cm.
7. On Internal Examination Of Genitalia, The Hymen Was
found Lacerated, Lacerated Wound 2 X 0.5 Cm On Right
labia Minora. Clotting Of Blood Found In Vaginal Canal.
Note: Vaginal Smear Slide Was Prepared For Pathological
examination (including D.N.A. Examination) And Hair Of Scalp
was Also Preserved For Forensic Examination.
On Internal Examination, The Brain Was Found Congested.
Right And Left Lungs Were Congested. In The Opinion Of The
doctor, The Cause Of Death Was Asphyxia As A Result Of Antemortem
throttling. The Death Could Have Taken Place On
4.4.2012 At About 6.00 P.m.
To The Court Question, Whether There Was Any Injury Of
teeth Bite On The Cheek, The Doctor Replied That There Was A
contused Mark On The Cheek Which Could Be Possible Because
of A Teeth Bite. To Another Court Question Whether Rape Could
have Possibly Been Committed On The Deceased, He Answered
in The Affirmative.
The Appellant Akhtar Was Also Sent For Medical
examination. The Doctor Examining The Appellant Prepared A
slide And Took A Blood Sample And Sample Of Hair Of The Head
and Beard Of The Appellant And Forwarded Them To The Police
station.
The Hair Of The Appellant Which Was Collected From
between The Fingers Of The Deceased Noor-un Nisha And The
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hair Of The Head And Beard Of The Appellant Which Were Cut By
the Doctor And The Hair Which Were Found From The Spot And
the Hair Of The Deceased Which Were Cut By Dr. Amit Kumar
PW-3 When He Was Conducting Post-mortem For Forensic And
possible DNA Examination, The Vaginal Smear Slide Which Was
prepared At The Time Of Post-mortem, The Sample Of Blood Of
appellant Akhtar And The Appellant's Underwear (i.e. A Total 8
items) Were Sent For Analysis To The Forensic Laboratory, Agra.
PW-5 Ashok Kumar Singh, I.O Also Prepared The Site Plan
(Ex. Ka-16) Of The Place Of Incident I.e. The First Floor Of The
house Of The Appellant Akhtar, Where The Dead Body Was
found. After Recording The Statements Of The Witnesses And
collecting Documents And Other Material I.e. Recovery
memos , Site Plan Of The Place Of Incident, Inquest, Postmortem
report, The I.O Submitted A Charge Sheet ( Ext. Ka-18)
under Sections 376, 302 And 201 I.P.C On 2.5.2012.
The Report Of The Forensic Laboratory Agra Dated
11.7.2012 Disclosed That No Blood Was Found On The Hair
collected From Between The Fingers Of The Deceased (item 1),
the Hair Cut From The Accused-appellant (item 2), The Hair
collected From The Room (item 4), From The Cut Hair Of The
deceased (item 5), From The Slide Made At The Time Of Post
mortem (item 6), And Broken Slide Collected From The
appellant (item 7) And Underwear Of Appellant (item 8) And
Kurta Of The Deceased ( Item 10). The Hair Collected From
between The Fingers Of The Deceased( Item.1) And The Hair Cut
from The Accused Appellant (item 2) Were Found To Be Of
human Origin But On Their Comparison, No Affirmative Opinion
could Be Given. However, The Hair Which Were Found In The
room (item 4) And The Hair Of The Deceased Which Were Cut By
the Doctor At The Time Of Autopsy (item 5) Were Also Found To
be Of Human Origin And On Comparison And Analysis, They
appeared To Be Similar. No Semen Was Found On The Slide
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collected From The Deceased (item 6) And The Broken Slide
collected From The Appellant (item 7) And On The Underwear Of
the Deceased (item 8), Salwar Of The Deceased (item 9) And
Kurta Of The Deceased (item 10).
Charges Were Framed Against The Appellant Under
sections 302 , 376 I.P.C And 201 I.P.C On 29.20.2012 For
having Committed Rape And Murder Of The 12 Year Old
deceased Noorunnisha And For Trying To Conceal The Evidence
regarding The Murder By Removing The Dead Body From The
room To Save Himself From Punishment.
Apart From The Three Formal Witnesses PW-3 Dr. Amit
Kumar, PW-4 Constable Parul Yadav And PW-5 Inspector Ashok
Kumar Singh, Whose Roles Have Been Mentioned Above, Two
witnesses Of Fact PW-1 Baise Ali, Father Of Deceased Noor-un
Nisha And Informant Of This Case And PW-2 Afzal Have Been
examined In This Case.
PW-1 Baise Ali Has Deposed That As Usual On The Date Of
incident, The Deceased Noor-un Nisha Had Gone For Grazing
buffaloes At About 8.00 A.m. In The Vacant Plot Near Their
house. She Would Normally Return By 4 Or 5 P.M, But When She
did Not Return Till 5.00 P.m On The Date Of Incident, Then PW-1
Baise Ali Accompanied By PW-2 Afzal, Islam,Najruddin And
Baisan Went In The Direction Of Sapra Guest House To Search
for The Deceased. When They Reached Near The House Of
appellant Akhtar, They Found Him Throwing The Dead Body Out
side. They Apprehended The Appellant Akhtar And They Took
him To The Police Station. The Informant Dictated The Report To
Rashid Out Side The Police Station (ext. Ka 1) To Which He
appended His Thumb Impression.
PW-2 Afzal Deposed That The Daughter Of Baise Ali Had
disappeared About 8-9 Months Prior To The Deposition. In The
morning She Had Gone To Graze Her Buffaloes But When She Did
not Return In The Evening, Even Though The Buffaloes Had
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returned Then This Witness Along With Four Others Went To
search For Noor-un Nisha. When They Were Returning After
searching Near The Sapra Guest House, They Saw The Appellant
Akhtar Catching Hold Of The Deceased By Her Hair And Pulling
her Out From His House. Then An Alarm Was Raised And The
appellant Was Apprehended. Noor-un Nisha Was Found Dead.
The Persons Apprehending Akhtar Took Him To The Police
station. At The Police Station, The Appellant Is Said To Have
admitted To His Guilt For Committing Rape And Murder Of The
deceased In The Presence Of 4-5 Persons, Who Were Present At
the Police Station. He Claims To Have Been Overcome By A
spirit (jinn) Which Caused Him To Commit The Crime.
Defence Of The Appellant
In His 313 Cr.P.C Statement The Appellant Took The Plea
that The Witnesses Had Falsely Deposed Against Him And That A
false Document Had Been Prepared And He Had Been Falsely
implicated By The Public. He Further Stated That The Place Of
incident Was Near His Shop And House. He Was Sitting At His
shop As Was His Daily Routine. His Family Members Had Gone
home. In The Evening As Per His Usual Practice, He Had Gone
for Prayers At The Nearby Barey Wali Mosque And Had
returned To His Shop. In The Mosque, An Announcement Was
also Made On The Loudspeaker That A Girl Had Gone Missing
and The People Had Collected And There Was A Jam On The
Budaun Bye-pass. The Dead Body Was Found Near The House Of
this Appellant. The Police Wrongly Apprehended Him Because
of Which The Appellant Was Locked Up And Falsely Implicated By
the Informant In This Case. The Appellant Has Also Examined
five Witnesses In His Defence.
DW-1 Mohammad Sharif, Is A Junior Engineer Of The
Power Division Buduan. He Stated That There Was No Light On
the Date Of Incident Until 9.00 P.m.
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DW-2 Hazi Rahmat Husain, Has Deposed That The
appellant Had Offered Evening Prayers At The Bare Wali Masjid,
where He Kept A Stall.
DW-3 Hafiz S. Ahmad, Who Had Also Given The Same
evidence Of The Appellant Offering Evening Prayers At The
mosque.
DW-4 Is Netrpal Who States That The Appellant Had A
shop, Where Auto Mobile Parts Were Sold. His House Was
adjoining The Shop. The Appellant Had A Good Character And
used To Offer Prayers. The Deceased Had Left Her House And
she Was Found At 9.00 P.m In The Plot Behind The House Of The
appellant. The Police Had Picked Him Up From His Shop In The
presence Of This Witness.
DW-5 Mujahid Husain. Has Also Deposed That The
appellant Used To Offer Prayers In Barey Wali Masjid. On The
date Of Incident, He Had Returned After Offering Prayers At 6.30
p.m To His Shop And Parked His Cycle At His Shop, And After
evening Prayers He Left With This Cycle.
Defence And Steps Taken By This Court For DNA
analysis Of Samples Of Hair Collected From The
deceased, Accused And Spot
When The Bench Consisting Of One Of Us (Amar Saran J)
and Mrs. Sunita Agarwal, J Were Hearing This Appeal On
23.10.13 On A Perusal Of The Forensic Laboratory Report And
post-mortem Report, We Found That Even Though The Doctor
who Conducted The Post-mortem Examination Had Collected
the Sample Of Hair From The Head Of The Deceased And Some
hair Were Found In The Room Of Incident Which Was Said To
have Been Pointed Out By The Appellant, The Two Sets Of Hair
are Said To Have Been Shown To Be Similar As Per Physical And
microscopic Examination. But No DNA Test Was Conducted On
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the Two Sets Of Hair. Also As No Affirmative Evidence Of Their
similarity Could Be Given By The Forensic Laboratory Report On
comparison Of The Hair Found Between The Fingers Of The
deceased, And The Hair Cut From The Head Of The Appellant,
hence We Decided To Have A Look At The Condition Of The
material And Called For The Said Material Which May Have Been
deposited In The Malkhana Or Elsewhere, Through The CJM
Budaun On The Next Date Of Listing, I.e. 29.10.2013.
On 29.10.2013, Constable Santosh Kumar Singh
produced Two Bundles Containing Material Exhibits Which Were
brought From The Malkhana. The Said Bundles Were Opened In
presence Of Learned Counsel For The Appellant And The Learned
A.G.A And The Seal Was Found Intact. In One Bundle, The
material Exhibit Was Kept In A Plastic Box Which Contained Hair
which Was Found Between The Fingers Of The Deceased Noor-un
Nisha (item 1 Of The Forensic Laboratory Report), Which Was Resealed
and Marked HC 3. The Second Material Exhibit Was The
hair Found At The Spot Pointed Out By The Appellant (item 4 Of
the Forensic Laboratory Report), Which Was Re-sealed And
marked HC 2. The Third Material Exhibit Kept In A Brown
envelope Wrapped In A White Paper Contained The Hair Of The
deceased Taken By The Doctor Who Conducted The Post
mortem Which Was Earlier Described As Item 5 In The Forensic
laboratory Report Which Was Re-sealed And Marked As HC 1.
These Three Material Exhibits Were Kept In Separate Bundles
which Were Assigned Fresh HC Numbers By Us As Mentioned
above. We Also Examined Material Exhibits (mentioned At
item Nos. 2 And 3) In The Forensic Laboratory Report Which
were The Hair And Blood Of Accused Akhtar Which Were
collected By Dr. R.K. Singh. However, As The Said Samples
were Not Found In A Good Condition And Further The Said Doctor
was Also Not Examined To Prove The Said Sample, We Directed
that A Fresh Sample Of The Hair Of The Appellant Be Got Cut By
the Jail Doctor In Presence Of The Jail Authorities And Judicial
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Officers Which Were Directed To Be Produced Before This Court
on 14.11.2013. We Also Directed That The Evidence Of The Jail
Doctor And Jail Authorities In Whose Presence The Hair Of The
appellant Was Cut As Also The Judicial Magistrate In Whose
presence The Samples Were Taken Be Recorded And Their
affidavits Under Section 296 Cr.P.C Be Also Taken And
forwarded To This Court.
Pursuant To Our Order Dated 29.10.2013, Samples Of Hair
of The Appellant Were Received From District Jail Budaun Which
we Directed To Be Kept In A Separate Envelop Which Was
marked As HC-4.
We Then Passed An Order On 14.11.13 Directing That The
cut Hair Of The Appellant Kept In A Sealed Bundle (HC 4), Be
forwarded To The Director, Centre For DNA Fingerprinting And
Diagnostics (CDFD) Hyderabad Along With The Hair Found
between The Fingers Of The Deceased (HC-3) For DNA
comparison. We Also Directed That The Hair Of The Deceased
which Was Collected By PW-3 Dr. Amit Kumar Who Conducted
the Autopsy (HC 1) And The Hair Purportedly Of The Deceased
found At The Place Of Incident, (HC-2) Be Also Forwarded For
DNA Comparison To CDFD, Hyderabad. The Affidavit And
reports Of Jagdish Prasad Deputy Jailer, Budaun, Umesh Singh,
Jail Superintendent And Dr. A.K. Gupta Were Filed And Taken On
record To Be Treated As Part Of The Evidence Under Section 296
Cr.P.C. We Had Sought A Report From CDFD Within Three
weeks.
Pursuant To Our Order Dated 14.11.2013, Letter Of CDFD
dated 21.11.2013 And Report Of CDFD Hyderabad Dated
3.12.2013 Were Placed Before Us On 10.12.2013. On
12.12.2013, We Directed That Expert Dr. Devinder Kumar, Who
had Prepared The DNA Report Be Present In Court On
27.1.2014. We Also Directed The CJM Budaun To Ensure The
presence Of Accused Akhtar Who Was Detained In District Jail
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Budaun On The Said Date So That The Evidence Of Expert Dr.
Devindra Kumar Could Be Put To The Accused And Dr. Devinder
Kumar Could Be Examined In The Presence Of The Accused.
As In His Earlier Examination Under Section 313 Cr.P.C
the Entire Evidence Was Compositely Put To The Accused, And
his Attention Was Not Specifically Drawn To The Circumstances
against Him We Also Directed The Learned Government
Advocate To Prepare A Draft Of Questions In Hindi For The
benefit Of The Court Which Were To To Be Put To The Accused
under Section 313 Cr.P.C And Which Were Also To Be Shared
with The Counsel For The Accused. We May Point Out Here That
such A Course Has Been Permitted Under The Newly Introduced
section 313 (5) Cr.P.C, Which Is In Force From 31.1.2009 Vide
Act No. 5 Of 2009.
The Case Was Thereafter, Directed To Be Listed On
27.1.2014.
Evidence Of Technical Examiner On DNA Report
and Re-examination Of Appellant In This Case
On That Date, The Technical Examiner Dr. Devinder
Kumar And The Accused Appellant Akhtar Were Present. The
material Exhibits And Documents Relating To The Case Were Put
to The Technical Examiner Dr. Devinder Kumar, Who Gave His
evidence In Court In Presence Of The Accused And His Counsel
Sri G.S. Chaturvedi, Who Also Cross-examined The Expert.
We Also Examined Ashok Kumar, Who Carried The
material Exhibit As C.W.1. We Then Examined The Accused
under Section 313 Cr.P.C On The Additional Evidence With
regard To The D.N.A Test Carried Out By Dr. Devinder Kumar
and Also Put To Him The Detailed Circumstances Which
appeared In The Evidence Against Him, For Preparation Of
which We Had Taken The Assistance Of The G.A., As Mentioned
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above, And Which Had Also Been Furnished To The Counsel For
the Accused For Seeking His Objections Or Clarifications.
It May Be Noted That Learned Counsel For The Appellant
has Not Objected To The Putting Of Detailed Questions To The
accused-appellant, Under Section 313 Cr.P.C On 27.1.2014
However Learned Counsel For The Appellant Has Objected To
some Questions In The Cross-examination And Under Section
313 Cr.P.C Which Refer To Admissions Made By The Appellant
before The Police, Such As The Admission That He Had
committed The Rape Because He Had Lost Control Of His Senses
and Was Overcome By A "jinn" And We May Clarify Here That
we Have Eschewed Consideration Of Those Admissions For
reaching A Decision On The Merits Of This Case.
The Report Of The D.N.A Expert And The Evidence Of Dr.
Devinder Kumar Disclosed That The Source Of Exhibit E (hair
marked As HC-3 By The High Court Labeled As HC X Which Was
taken From The Palm Of The Deceased) Yielded DNA Profile Of
male Origin And Was Matching With The DNA Profile Of The
source Of Exhibit A (a Bunch Of Cut Hair From The Scalp Of
accused Akhtar) Which Was Marked As HC-4 By The High Court.
The Source Of Exhibit C (hair Cut From The Deceased Labeled As
HC-1 By The High Court In The Packet Labeled As HC-X) And
exhibit D (hair Said To Be Found On The Crime Scene) Which Was
marked As HC-2 In The Packet Labeled As HC X. The Examiner
deposed That He Had Been Allotted 60 D.N.A. Cases, Of Which,
he Had Submitted Reports In Around 30 Cases. The Conclusion
in His Report Was Also Based On Some Additional Data, Which He
was Carrying In CDFD File No. 2768, Which Contained
genotyping Results In The Form Of Electropherogram. As
learned Counsel For The Appellant Wanted The Entire Additional
data To Be Placed On The Record, We Directed Accordingly, And
the Expert Devinder Kumar Produced The Same, Which Were
taken On Record. It May Be Noted That No Criticism Has Been
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raised By The Learned Senior Counsel Regarding The Quality Of
the DNA Examination By Dr. Devinder Kumar Of The CDFD.
Arguments Of Counsel For Defence
The Contentions Of Sri G.S. Chaturvedi As Mentioned In
his Arguments And In His Written Submissions Were That The
basic Evidence In This Case Was Only That The Accused Had
been Caught Disposing Of The Body Near His House At About
6.00 P.m. This Evidence Appeared To Be False Because PW-1
Baise Ali Had Given Conflicting Evidence At Different Points In
his Examination And Cross Examination. He Had Further Stated
that He Searched For His Daughter The Whole Night And Even A
loudspeaker Announcement Was Made Regarding The
disappearance Of The Daughter Which Would Render False The
evidence Of The Accused Having Been Apprehended When He
was Throwing The Dead Body At 6.00 P.m. It Was Suggested
that Actually The Body Was Recovered At About 9 Or 9.30 P.m
near The House Of The Appellant And He Was Implicated By The
police, Only To Show The Case As Solved Because Of The Outcry
raised By The General Public And Politicians. The Alleged
recovery Of Hair From The Fingers Of The Deceased Was False
and Baseless As It Was A Recovery From An Open Place In The
presence Of 100-200 Persons Who May Have Touched The
body, So It Was Highly Improbable That The Scalp Hair Of The
appellant Were Recovered From The Fingers Of The Deceased.
It Was Further Argued That The Investigation And Recovery
was Unreliable And Doubtful As Only Two Relation Eye Witnesses
PW-1 Baise Ali And PW-2 Afzal Had Been Examined And No
other Independent Eye Witness Has Supported The Prosecution
version And Only To Complete The Chain Of Evidence, The I.O
had Taken The Hair Of The Appellant At The Police Station And
the Same Was Shown To Have Been Recovered From The Fingers
of The Deceased Noor-un Nisha And From The Bed Of The
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appellant. There Were Contradictions Inasmuch As According To
the FIR, And The 161 Cr.P.C Statements, It Was Mentioned That
the Deceased Had Left Her House With Cattle In The Afternoon,
but During The Trial PW-1 And PW-2 Stated That The Deceased
had Left Her Home In The Morning. It Was Further Argued That
the FIR Was Lodged At 8.15 P.m I.e. After A Delay Of 2 Hours Of
the Recovery Of The Dead Body And From The Statement Of PW-
1 And PW-2 It Could Be Inferred That The FIR Was Lodged Prior
to The Recovery Of The Dead Body Which Was Impossible. A
doubt Was Raised Regarding The Reliability Of The DNA Report As
it Was Contended That Recovery Of The Hair From The Fingers
and Palm Of The Deceased By The I.O Was Doubtful, Hence Their
correspondence With The Hair Taken From The Appellant Whilst
he Was In Jail After The Order Of This Court Could Not Improve
the Case Of The Prosecution. It Was Further Submitted That The
FIR And Statements Of Witnesses Under Section 161 Cr.P.C And
other Documents Including The D.N.A Report Reveal That After
sending The Dead Body For Autopsy, All Other Formalities Were
completed Which Shows The False Implication Of The Appellant
in This Offence.
Arguments For Prosecution
Learned Government Advocate On The Other Hand Filed
written Arguments And Submitted That There Were Sufficient
circumstances For Connecting The Appellant With This Incident
which Conclusively Established That The Appellant And None
other Had Committed The Crime. The Deceased Had Left Her
house In The Noon Of 4.4.2012 And When She Did Not Return
back As Per Her Daily Routine, A Search Was Made By PW-1 And
PW-2 And Others And At About 6.00 P.m. They Caught The
appellant Red Handed Near His House Whilst Throwing Out The
dead Body Of The Deceased Noor-un Nisha. The FIR Was
subsequently Lodged By PW-1 Baise Ali. The Appellant Was
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handed Over To The Police By The Informant At The Time Of
lodging Of The FIR. Even At The Time Of Inquest, Some Hair Were
found On The Palm And Between The Fingers Of The Deceased
which Were Collected And Duly Sealed By The I.O. During The
course Of Investigation, Pursuant To The Disclosure Statement
of The Appellant, The I.O Also Recovered Some Hair From The
place Of Incident, I.e. The Bed (Diwan) Inside The Room Of
house Of The Appellant. PW-3 Dr. Amit Kumar, Who Conducted
the Postmortem On The Body Of The Deceased Had Also Cut And
preserved The Sample Of Hair Of The Deceased Which Tallied
with The Hair Found On The Bed And In The Room Whose Keys
were In The Custody Of The Appellant And Who Had Led The
police And Witnesses To The Room, Which Was The Scene Of The
crime. The Prosecution Case Could Be Established By PW-1 And
PW-2 In Court, Who Had Absolutely No Motive For Falsely
implicating The Appellant. No Suggestion Was Even Given
regarding Any Enmity Of These Witnesses With The Appellant.
The Witnesses Did Not Even Know The Parentage Of This
accused Prior To The Incident. The Contradictions Pointed Out
by Learned Counsel For The Appellant Were Minor In Nature On
the Basis Of Which, The Entire Prosecution Case Could Not Be
discarded. So Far As The Contention Regrading Variation In The
time In The Statement Of PW-1 As Pointed By Learned Counsel
for The Appellant Was Concerned, It Was Stated That This Whole
argument Has Been Built On A Sentence Appearing In The
deposition Of PW-1 That At About 8 Or 9 P.m On The Date Of
incident The Persons Of The Locality Had Blocked The Road Due
to Non Recovery Of The Victim. In The Present Case, The FIR Was
lodged At 8.15 P.m And Even The Inquest Started At 9.00 P.m.
The Time Of Inquest As Stated By PW-5 SI A.K. Singh I.O Has Not
been Challenged By The Appellant. The Appellant Was Handed
over To The Police At The Time Of Lodging Of The FIR. PW-4 Parul
Yadav Who Was A Member Of The Police Team At The Time Of
inquest Proceedings Has Proved The Inquest Proceedings.
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Since The Time Of Inquest On The Cadaver Has Not Been
disputed By The Appellant As Such, It Was Apparent From The
evidence On Record That The Time Given By The PW-1 Was Due
to An Inadvertent Mistake. PW-1 Was An Illiterate Rustic, Who
may Have Been Confused About The Time. The Observations Of
the Trial Judge In This Connection That Variations Of Time Could
not Be Accepted At Its Face Value Because It Was A Result Of A
slip Of Tongue, Was In Order. Even If There Were Any
deficiencies In The Investigation, It Was Contended, That Could
not Be A Ground For Discarding The Prosecution Evidence Which
was Authentic, Credible And Cogent. So Far As The Argument Of
learned Counsel For The Appellant Regarding Ante-timing Of The
FIR Was Concerned, It Is Submitted That No Suggestions
regarding It Was Given To The I.O That The FIR Was Ante-timed
as The I.O Immediately Proceeded To The Spot And Even
started The Inquest Proceedings At 9.00 P.m. The Medical
evidence Corroborates The Allegation Of Throttling And Rape Of
the Victim. The Forensic Report Of The Agra Forensic Science
Laboratory Indicated That The Hair Of Deceased Preserved By
the Doctor At The Time Of Postmortem Were Found Similar In
length, Thickness And On The Basis Of Microscopic Composition
to The Hair Collected From The Scene Of The Crime. This Fact Has
been Further Confirmed By The DNA Report Of CDFD Hyderabad
which Was Proved By CW-1 Dr. Devinder Kumar Before This
Court. The D.N.A Report Of CDFD, Hyderabad Further Indicated
that The Hair Found Between The Fingers Of The Deceased And
the Sample Of The Head Hair Of The Appellant, Collected By The
jail Authorities, On This Court's Order Were From The Same
individual. The Contents And Conclusion Of This Report Cannot
be Doubted And Have To Be Accepted As Scientifically Accurate
and Based On An Exact Science.
Regarding The Appellant Having Been Caught Red Handed
while Disposing Of The Dead Body Of The Deceased Near His
house It Was Argued By Learned GA That It Has Not Been
17
explained By The Appellant As To How The Dead Body Came In
his Possession Either By Way Of A Suggestion In The Cross
examination Or In His Statement Recorded Under Section 313
Cr.P.C. Also Pursuant To The Disclosure Statement Of The
appellant, The Hair Of The Deceased Were Found At The Place Of
incident I.e. The Room With A Bed (divan) On The Upper Floor Of
the House Of The Appellant On His Pointing Out. No Explanation
has Been Given By The Appellant As To How The Said Hair Were
lying In His House. This Fact Was Only Within His Special
knowledge, And The Onus Under Section 106 Of The Evidence
Act Fell On The Appellant To Explain How The Hair Of The
deceased Were Present On The Divan And Room Of His House Of
which He Had Custody. Regarding The Fact That The Hair Found
at The Place Of Incident And The Sample Of The Hair Of The
deceased Having Been Found Similar In The Agra Forensic Test
and Also As Per The D.N.A Report By The CDFD, Hyderabad, The
hair Found Between The Fingers Of The Deceased And The
sample Of The Hair Taken From The Appellant In Jail Pursuant To
our Order Being Of The Same Individual, The Appellant Could
give No Explanation Except By Making A Suggestion In An
answer In His Re-examination Under Section 313 Cr.P.C Before
this Court, That The Hair Between The Fingers Of The Deceased
had Been Planted By The Police, But No Suggestion In This
regard Was Even Given To The I.O. Considering The Gravity Of
the Crime Of Rape And Murder Of A Minor Child, Learned
Government Advocate Submits That There Was No Immediate
extreme Mental Or Emotional Disturbance Or Provocation To
the Appellant For Committing The Crime And The Case Falls
within The Purview Of The Rarest Of Rare Cases Calling For The
death Penalty.
Both The Counsel For The Parties Have Cited Case Law
which Would Be Considered At The Appropriate Stage.
18
Analysis Of Contentions Of Learned Counsel For The
parties And Evidence.
The Basic Contention Of The Learned Counsel For The
appellant Was That The Claim Of The Witnesses That The
appellant Had Been Caught Hold Of At About 6.00 P.m When He
was Throwing The Dead Body Of The Deceased Noor-un Nisha
outside His House Was Unreliable. In Fact The Dead Body Had
been Found Lying On The Spot And Only To Show The Case As
solved Because Of Public And Political Out Cry, The Police Had
falsely Implicated The Appellant In This Case. Learned Counsel
for The Appellant Tried To Support This Argument By Contending
that PW-1 Baise Ali In His Cross Examination Has Stated That
when The Deceased Noor-un Nisha Did Not Return Till 5 Or 6 Pm
in The Evening, A Search Was Made For Her, By Which Time It
became Late And Lights Were Lit In The Houses. A Rickshaw With
a Loudspeaker Made An Announcement That Baise Ali's
daughter Had Not Returned And That She Be Searched. It Was
argued That In This Background The Apprehension Of The
appellant When He Was Throwing The Corpse Outside His House
was Unlikely.
Even If It Is Accepted For The Sake Of Arguments That The
defence Has Succeeded In Raising A Small Doubt, As To Whether
the Appellant Could Indeed Have Been Arrested At The Very
moment When He Was Throwing The Dead Body, And That The
appellant Might Have Been Linked With This Crime After The
corpse Was Found Lying Outside His House. But There Are Other
significant Features In This Case, Which Dispel Any Suspicion In
our Mind That Anyone Other Than The Appellant Was
responsible For The Crime.
There Appears To Be Substance In The Learned AGA's
submission That The Description Of Time Of Apprehension Of The
appellant As About 6 Pm When He Was Throwing The Cadaver
appears To Be An Error On Part Of The Rustic Witness, Who May
19
not Have Had A Clear Idea About The Time.
Furthermore If The Appellant Was Not Arrested When He
was Throwing The Cadaver, The Police Could Not Have
recovered The Broken Bangles And Hair Of The Deceased From
the Room In That House, (which Showed The Room To Be The
place Of Incident), When The Police Were Taken There By The
appellant After He Was Handed Over At The Police Station By
PWs 1 And 2, Baise Ali And Afzal. The Appellant's House Could
not Have Been Identified As The House Where The Crime Had
taken Place, As There Were A Large Number Of Houses Near
point 'A' On The Site Plan (Ext. Ka 16), Where The Cadaver Was
found. Thus The Plots Of Shakil, The House Of Ashok Pasi,
Sapera Guest House, And The Houses Of Negcha And Dhichu
and Also The Appellant Akhtar Have Been Shown In The Site
plan As Being Near The Point 'A.' Furthermore In His Crossexamination
PW 1 Baise Ali Admits That There Were 500 To 600
houses Between His House And Sapera Guest House.
No Doubt Only PW 5, A.K. Singh, Inspector, And PW 4,
female Constable Parul Yadav Have Been Produced In Court To
prove The Discoveries Of The Broken Bangle Pieces And Hair
from The Divan And "bistar" (bedding) And The Floor To The
South Of The "divan" Where They Were Taken By The Appellant,
which Were Collected And Sealed And Shown As Ext. Ka 14 In
the Recovery Memo. The Prosecution Has Even Failed To
examine The Two Witnesses Of Recovery, Nathu And Sayyar Ali,
(who Signed The Recovery Memo Along With The Appellant). But
the I.O., PW 5 A.K. Singh Has Proved The Discovery Of The Room
at The Instance Of The Appellant Where The Broken Bangles And
hair Of The Deceased Were Lying. The Recovery Memo Also
bears The Signatures Of The I.O., PW 5 A.K. Singh And The
appellant (along With The Two Non-produced Witnesses).
We Also Think That It Would Be Wrong Not To Place Reliance
on The Testimony Of The The Police Witnesses PW 5 AK Singh, Or
20
PW 4 Constable Parul Yadav, Who Have Proved The Inquest
report And The Recoveries Only Because The Independent
prosecution Witnesses Of Recovery Have Not Been Examined.
Though No Doubt It Would Have Been Better, If The Trial Court
had Made Efforts For Examining The Independent Recovery
witnesses, Nathu And Sayyar, But Merely In View Of Their Nonexamination,
the Testimony Of The Police Witnesses Who Have
proved The Recovery Ought Not To Be Discarded. The Court May
presume That Official And Judicial Acts Have Been Regularly
performed In View Of Section 114 (e) Of The Evidence Act,
although The Requirement In Law Is Only That Statements Of
police Witnesses Need To Be Scrutinized Carefully Before The
Court Can Act Upon Them And In Appropriate Cases
corroboration In Material Particulars May Be Sought. Certainly
there Is No Rule That Police Testimony Must Invariably Be
discarded As They Were Interested In Proving The Prosecution
case.
The Law On This Point Has Thus Been Reiterated Recently In
Gian Chand V. State Of Haryana, (2013) 14 SCC 420, In
paragraph 32 At Page 432 As Follows :
"32. In Rohtash Kumar V. State Of Haryana, (2013) 14 SCC
434 This Court Considered The Issue At Length And After Placing
reliance Upon Its Earlier Judgments Came To The Conclusion
that Where All Witnesses Are From The Police Department, Their
depositions Must Be Subject To Strict Scrutiny. However, The
evidence Of Police Officials Cannot Be Discarded Merely On The
ground That They Belong To The Police Force, And Are Either
interested In The Investigating Or The Prosecuting Agency.
However, As Far As Possible The Corroboration Of Their
evidence On Material Particulars Should Be Sought. The Court
held As Under:
"Thus, A Witness Is Normally Considered To Be
independent, Unless He Springs From Sources Which Are
likely To Be Tainted And This Usually Means That The Said
21
witness Has Cause, To Bear Such Enmity Against The
accused, So As To Implicate Him Falsely. In View Of The
above, There Can Be No Prohibition To The Effect That A
policeman Cannot Be A Witness, Or That His Deposition
cannot Be Relied Upon."
(See Also Paras Ram V. State Of Haryana, (1992) 4 SCC 662,
Balbir Singh V. State, (1996) 11 SCC 139, Akmal Ahmad V.
State Of Delhi, (1999) 3 SCC 1315, M. Prabhulal V. Directorate
of Revenue Intelligence, (2003) 8
SCC 449 And Ravindran V. Supt. Of Customs, (2007) 6 SCC
410)
It Is Also Noteworthy Here That After Devinder Kumar, The
CDFD DNA Expert Was Examined On 27.1.2014 And The Fresh
313 Cr.P.C Statement Of The Appellant Was Recorded, An
application Was Moved By The Learned Defence Counsel On
28.1.14, Purportedly Under Section 233 Cr.P.C, To Summon
some Witnesses Of The Recovery Of The Hair From Between The
fingers Of The Deceased, Or From The Room In Custody Of The
appellant, Who Were Signatories Of The Recovery Memos. On
the Said Application An Order Was Passed For Summoning Ible
Hasan, Mukhtiyar, Natthu And Siffar As Defence Witnesses. On
10.2.14 One Witness Ible Hasan Appeared Along With The I.O.
But Learned Defence Counsel Made An Endorsement On The
application And Order Sheet On 10.2.14 That He Did Not Want To
examine Ible Hasan. We Also Found That The Defence Counsel
had Not Taken Steps For Obtaining Processes For Production Of
the Defence Witnesses. We Were Therefore Of The View That The
disposal Of The Appeal Would Be Unnecessarily Held Up, Hence
we Discharged The I.O. PW 5, Ashok Kumar Singh Who Was
present And Issued No Further Production Warrant For The Other
witnesses. This Order Has Not Been Challenged By The Defence.
From The Failure Of The Defence To Examine Ible Hasan When
he Appeared On 10.2.14 As A Defence Witness, This Court Could
reasonably Presume In View Of Section 114(g) Of The Evidence
22
Act, That The Evidence Of Ible Hasan If Examined, Would Have
been Unfavourable To The Defence, And That Even Though Ible
Hasan Who Was A Signatory Of The Recovery Memo (Ext. Ka 6)
of The Hair Found Between The Fingers Of The Deceased, Had Not
appeared As A Witness, But It Is Apparent That Ible Hasan Does
not Appear To Be Prepared To Give Evidence Favouring The
defence. In Any Case The Defence Can Make No Capital Of The
fact That The Prosecution Has Not Examined The Witnesses Of
recovery, Who May Not Have Been Interested In Getting
embroiled In The Matter, Even Though They Had Signed The
recovery Memos, But Who Do Not Appear To Be Interested In
supporting The Case Of The Defence Either. Police Witnesses As
mentioned (supra) Have Given Evidence Of The Recoveries And
there Is No Good Reason To Discard Their Testimony.
The Witness Baise Ali, PW-1 Has Specifically Denied That
he Was Given Information Regarding The Recovery Of The Corpse
of The Deceased. He Was Also Denied The Suggestion That In
the Late Evening In Order To Get The Public Demonstration
ended, He Was Compelled To Lodge The FIR As Dictated By His
relation.
Likewise PW-2 Afzal Has Also Denied The Defence
suggestion That At 1.00 A.m In The Night When The Cadaver
was Found In The Jungle, Then The Jaam (blockade) Was Ended
and After That The Police Got The Report Lodged. Also We Are Of
the View That If The Cadaver Had Been Found In The Jungle As
was Suggested By This Question In Cross-examination It Was
not Explained By The Defence As To How The Broken Bangles
and The Hair Of The Deceased Etc. Would Have Been Recovered
from The Appellant's Room And How Would The Room, Which
was The Scene Of The Crime, Been Located, As The Room In
question Could Only Have Been Pointed Out By The Appellant.
Another Circumstance Which Contradicts This Suggestion
is The Fact That Inquest On The Dead Body Itself Commenced At
23
9.00 P.m And Was Concluded At 10.15 P.m. No Suggestion Was
given To The I.O PW-5 Ashok Kumar Singh Or To PW-4
Constable Parul Yadav That The Inquest Had Not Been Carried
out At The Time Alleged.
There Was Some Cross Examination Of PW-2 Afzal On The
point That In The Statement Under Section 161 Cr.P.C To The
police, He Had Stated That The Appellant Had Carried The
deceased On Both His Hands But In His Evidence In Court, He
stated That The Appellant Had Carried The Deceased By Her
neck And Hair. Also We Are Not Prepared To Accept The
contention That The FIR Was Ante-timed, As Even Though The
accused Having Been Apprehended By The Witnesses And
public At 6.00 P.m, There Was No Good Reason For The Report
having Been Lodged After Two Hours 15 Minutes At 8.15 P.m
and The Said Report Was Therefore Written At The Instance Of
police
In Sandeep V. State Of U.P., (2012) 6 SCC 107, In
paragraph 57 It Has Been Held That Minor Variations In The
time Of Registration Of The FIR Cannot Be Considered A Serious
infirmity Because Of Some Variations In The Time Mentioned`by
different Witnesses, Or Even For Some Reasons Suggesting
alteration Of The Time, If There Was No Reason To Doubt The
registration Of The FIR By The Informant, Or For Holding That
there Was Any Deliberate Attempt To Ante-date Or Ante-time
the FIR By The Prosecution. In Paragraph 61 It Was Rightly
observed In The Aforesaid Law Report: "We Have Already Held
that The Accused Miserably Failed To Substantiate The Stand
that He Was Not Present At The Spot Of Occurrence Whereas He
was Really Apprehended On The Spot By The Prosecution
witnesses And Was Brought To The Police Station From Whom
other Recoveries Were Made. The Submission By Referring To
certain Insignificant Facts Relating To The Delay In The Alteration
of Crime Cannot Be Held To Be So Very Fatal To The Case Of The
24
prosecution."
However, Even If Something May Be Said In Favour Of The
accused On The Basis Of These Suggestions And Arguments,
there Are Certain Important And Compelling Facts In This Case
which Unerringly Indicate The Involvement Of The Appellant
alone In This Offence And None Else.
These Irrefutable Circumstances Are As Follows. If The
informant Had Only Picked Up The Appellant On Ground Of
suspicion, There Was No Question Of The Appellant Having Taken
the Informant And The Police To The Room, The Keys Of Which
room Were With His Neighbour. After The Room Was Got Opened,
hair Was Found Lying On The Bed And On The Floor Of That Room
which Was Collected By The I.O. This Hair As Per The Agra
forensic Laboratory Report And The D.N.A Report By CDFD,
Hyderabad Clearly Demonstrated That The Said Hair Was The
hair Of The Deceased, As It Matched With The Hair That PW 3 Dr.
Amit Kumar Had Collected At The Time Of Autopsy. If The
appellant Had Not Committed The Crime In Question, There Was
no Possibility Of The Hair Of The Deceased Being Present In The
room Of His House, And To A Specific Question Being Put To The
accused In His Detailed 313 Cr.P.C Examination On 27.1.2014
before This Court As To How The Long Hair Of The Deceased And
pieces Of Her Red Bangles Were Found In The Room And On The
bed Therein, He Simply Denied That He Was Arrested By The
police. He Maintained That The Police And The Photographer
had Gone Upstairs, But He Has Offered No Explanation As To
how The Hair, And Broken Pieces Of Bangles Of The Deceased
were Found In The Upstairs Room Of His House.
Most Important The Complicity Of The Appellant In This
offence Is Established From The DNA Matching Of The Hair
which Was Collected From Between The Fingers Of The Deceased
Noor-un Nisha With The Hair Of The Appellant Which Had Been
cut And Its Sample Taken On The Basis Of The Earlier Bench's
25
order Dated 29.10.13. Notably The Presence Of Hair In Between
the Fingers Of The Deceased Was Noticed Even In The Inquest
report, Which Establishes That It Was Taken In Possession By
the Police At That Stage. The Recovery Memo Of The Said Hair
was Prepared Which Was Marked As Exhibit Ka-11 And Which
describes The Said Hair As Black And Henna Coloured Which
were Collected In A White Paper Puriya. The Said Hair Were
produced Before Us On 29.10.13 Along With Some Other
samples Which Were Collected. As The Previous Sample Of The
hair And Blood Which Were Taken From The Appellant By Dr.
R.K. Singh (who Has Not Been Examined), And The Hair Found
from The Fingers Of The Deceased Could Not Be Determined To
be Of The Same Person, And The High Court Bench Had Also
found The Bottle And Seal On The Sample Of The Hair And Blood
collected From The Appellant To Be In A Damaged Condition, The
bench Had Directed That A Fresh Sample Of The Appellant's Hair
be Collected From Him At The Jail Where He Was Lodged By The
order Dated 29.10.13. This Was Done And The Fresh Sample Of
the Appellant's Hair And Sample Of Other Materials Earlier
collected Were Sent To The CDFD, For A DNA Analysis By The
order Dated 14.11.2013.
It May Also Be Noted That Initially The Suggestion Of The
defence To The I.O Was That No Hair Were Recovered From
between The Fingers Of The Deceased. However There Is A
somersault From This Suggestion When The Appellant In His 313
Cr.P.C Statement Before This Court On 27.1.2014, In Answer To
question No.13, Suggests That His Hair Were Taken By The
police At The Hospital And The Police Station, And At This Stage
a Contention Has Been Raised By Learned Counsel For The
appellant, That The Hair Was Planted By The Police Between The
fingers Of The Deceased. This Belated Suggestion And
contention That The Police After Apprehending The Appellant On
his Being Handed Over By The Informant And Other Witnesses,
would Go To The Length Of Getting His Hair Immediately Cut, And
26
then Put It Between The Fingers Of The Deceased Before 9 P.m.
when The Inquest Started, Is Too Far-fetched A Suggestion,
which Deserves To Be Summarily Rejected.
Also Again The Appellant Somersaults From His Answer To
question No. 13, When In Response To Question No.33, He
states That The Hair Which Were Found Between The Fingers Of
the Deceased Were Not His Hair. As Per The D.N.A Report Given
by The CDFD Hyderabad Laboratory However It Was Clear That
on DNA Matching The Hair Found Between The Fingers Of The
deceased And The Hair Taken From The Head Of The Appellant
on The High Court's Order Were Of The Same Person. As Held In
Santosh Kumar Singh V. State, (2010) 9 SCC 474, That The
conclusions Of The DNA Report Cannot Be Doubted And Must Be
accepted As Scientifically Accurate As DNA Finger Printing Is An
exact Science. In Santosh The Trial Court Had Not Relied On The
DNA Report And Held That The Vaginal Swabs And Slides And The
blood Sample Of The Accused Had Been Tampered With, And
had Relied On Some Text Books For This Purpose. The High
Court And The Supreme Court However Held That There Was No
reliable Evidence For Suggesting That The Sample Had Been
tampered With, And Even Criticized The Trial Court For Relying
on Text Books Which Were Not Put To The Expert.
Recently The Same Position Regarding The Value Of The
DNA Profiling Has Been Reiterated In Dharam Deo Yadav V.
State Of U.P.,(2014) 5 SCC 509, Wherein, Modern Forensic
techniques For Criminal Investigations Such As DNA Profiling
have Been Lauded, Because Of Reliable Witnesses Failing To Give
testimony, Or Turning Hostile Due To Intimidation, Though It Is
conceded That The DNA Testing May In A Particular Case Not Be
cent Percent Accurate, As That Would Depend On The Quality Of
the Analysis And Whether The Sample Collected Was Kept Free
from Contamination. Thus The Law Report Observes In
paragraph 30:
27
"30. The Criminal Justice System In This Country Is At
crossroads. 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 The
clutches Of Law. Even The Reliable Witnesses For The
prosecution Turn Hostile Due To Intimidation, Fear And Host Of
other Reasons. The Investigating Agency Has, Therefore, To
look For Other Ways And Means To Improve The Quality Of
investigation, Which Can Only Be Through The Collection Of
scientific Evidence. In This Age Of Science, We Have To Build
legal Foundations That Are Sound In Science As Well As In Law.
Practices And Principles That Served In The Past, Now People
think, Must Give Way To Innovative And Creative Methods, If
we Want To Save Our Criminal Justice System. Emerging New
types Of Crimes And Their Level Of Sophistication, The
traditional Methods And Tools Have Become Outdated, Hence
the Necessity To Strengthen The Forensic Science For Crime
detection. Oral Evidence Depends On Several Facts, Like Power
of Observation, Humiliation, External Influence, Forgetfulness,
etc. Whereas Forensic Evidence Is Free From Those Infirmities.
Judiciary Should Also Be Equipped To Understand And Deal With
such Scientific Materials. Constant Interaction Of Judges With
scientists, Engineers Would Promote And Widen Their
knowledge To Deal With Such Scientific Evidence And To
effectively Deal With Criminal Cases Based On Scientific
evidence. We Are Not Advocating That, In All Cases, The
scientific Evidence Is The Sure Test, But Only Emphasising The
necessity Of Promoting Scientific Evidence Also To Detect And
prove Crimes Over And Above The Other Evidence."
In The Aforesaid Law Report Where The Skeleton Of The
deceased A Female From New Zealand Was Exhumed From The
house Of The Appellant After A Year Of Its Burial There On The
pointing Out Of The Appellant And All The Skin Had Even
disappeared By Then, It Was Observed That As The Humerus And
28
femur Bones Corresponded Biologically With The Blood Sample
of Her Father, It Was Held Sufficient For Establishing The Identity
of The Deceased, Looking To The Specialized Skill Of The DNA
analysts And The Laboratory (CDFD, Hyderabad), Which Had
carried Out The DNA Analysis In That Case. In The Present Case
also The DNA Analysis Was Carried Out By The Same CDFD,
Hyderabad On Our Orders, And No Reasons Were Suggested By
the Learned Counsel For The Appellant For Showing Why The
report Could Not Be Relied Upon.
With This DNA Affirmation That The Hair Of The Appellant
was The Same As The Hair Found Between The Fingers Of The
deceased, This Identify Cannot Be Explained On The
contradictory Stances On This Aspect In The Defence
suggestions To Witnesses And In His Answers Given To The
questions Put Under Section 313 Cr.P.C. Statements Before The
lower Court And This Court.
The Other Factor Which Is Also Unexplained By The
defence Is As To How The Hair Of The Deceased Would Have
been Present In The Appellant's Top Floor Room Whose Keys
were Provided By The Appellant To The Police. It Would Again Be
too Far-fetched To Suggest That The Police Might Have Cut The
hair Of The Deceased And Placed It In The Room And On The Bed
(divan). Cumulatively These Two Circumstances, I.e. The
presence Of The Hair And The Broken Red Bangles Of The
deceased In The Appellant's Room And On The Bed Therein,
which Was Got Opened By The Appellant, And The Presence Of
the Hair Of The Deceased Between The Fingers Of The Deceased,
which Indicate A Possible Struggle By The Deceased Who May
have Pulled His Hair To Save Herself Are Overwhelming In
nature Which Establish The Involvement Of The Appellant In This
offence In A Clinching Manner.
We Should Also Keep In Mind That When The Incident Took
place, The Appellant Was Not Even Known To The Informant PW29
1 And The Other Witness Afzal And The Informant States That He
did Not Even Know His Name From Before, Nor Even His Father's
name. Hence Clearly The Appellant Had Not Been Picked Up On
account Of Any Enmity. In Fact There Was No Reason For The
false Implication Of The Appellant. These Are All Reasons For
concluding That The Recovery Of The Hair Of The Deceased And
her Broken Bangles From The Appellant's Upstairs Room, And
also The Appellant's Hair From Between The Fingers Of The
deceased Were Genuine Recoveries, And Which In Conjunction
with The CFL And DNA Examinations, Regarding Which The
appellant Could Offer No Satisfactory Explanation, Clearly
establish The Complicity Of The Appellant In This Crime, And Are
sufficient For Dispelling Any Iota Of Doubt, Which Have Been
raised On The Bases Of The Basis Of Some Minor Contradictions
and Suggestions Given By The Deceased That The FIR Was
lodged Belatedly At 8.15 P.m., When The Appellant After Being
arrested Was Handed Over To The Police At About 6 P.m., And
thus Was A Product Of Police Advice, Or Some Suggestions
about A Loudspeaker Information Having Been Circulated About
the Deceased Girl Having Gone Missing In The Evening Or About
the Road Block By The Agitating Public, Which Continued Till Late
at Night. It Has Been Rightly Observed In State Of U.P. V.
Krishna Master And Others, (2010) 12 SCC 324 And State Of
U.P. V. Anil Singh, 1988 Supp SCC 686 That If The Evidence
read As A Whole Has A Ring Of Truth, Then Discrepancies,
inconsistencies, Infirmities Or Deficiencies Of A Minor Nature
not Touching The Core Of The Case Cannot Be A Ground For
rejecting The Evidence. The Contentions Of The Defence Can
therefore Not Displace The Inferences That Are To Be Drawn
from The Strong Material Incriminating Circumstances That
have Been Elicited In This Case For Connecting The Appellant
with The Crime.
We Are Therefore Left Without A Scintilla Of Doubt
regarding The Complicity Of The Appellant In This Offence And
30
that The Appellant And The Appellant Alone Could Have
committed This Crime, On All The Criteria For Judging A Case On
the Basis Of Circumstantial Evidence.
Question Of Appropriate Sentence And Imposition
of Life Imprisonment To Run For The Appellant's
whole Natural Life In Place Of Death Sentence
The Final Question For Consideration In This Case Is
whether It Would Be Appropriate To Confirm The Sentence Of
death Awarded To The Appellant Or Whether A Sentence Of Life
imprisonment Would Be More Appropriate In The
circumstances.
The Constitutional Bench Decision, Bachan Singh Vs.
State Of Punjab, (1980) 2 SCC 684 Which Was Even Cited By
the Trial Judge, The Apex Court Has Enjoined Giving Importance
to The Antecedents Of The Prisoner, Apart From The Gravity Of
the Crime, For Reaching The Conclusion Whether Only A Death
sentence Was Appropriate. One Important Mitigating
circumstance To Be Taken Into Account Was Whether The
accused Had A Previous Criminal History, Or Whether There Was
any Material To Suggest That His Reform Was Wholly Improbable
and That He Was Likely To Commit Such Crimes In The Future.
However Except Referring To The Sensational And Dastardly
nature Of The Crime, The Trial Judge Does Not Appear To Have
considered These Factors.
In Somewhat Similar Circumstances, In Amit V State Of
U.P., (2012) 4 SCC 107, Where A 3 Year Old Girl Had Been
murdered By A 28 Year Old Man, The Court Converted A
sentence Of Death To A Sentence Of Life Imprisonment, To Run
for The Whole Life Of The Prisoner, As He Had No Criminal
antecedents, And It Was Not Likely That The Accused Would
repeat The Offence. Thus It Was Mentioned In The Decision In
31
para 22:
"In The Present Case Also, We Find That When The
appellant Committed The Offence He Was A Young Person
aged About 28 Years Only. There Is No Evidence To Show
that He Had Committed The Offences Of Kidnapping, Rape Or
murder On Any Earlier Occasion. There Is Nothing On
evidence To Suggest That He Is Likely To Repeat Similar
crimes In Future. On The Other Hand, Given A Chance He May
reform Over A Period Of Years. Hence, Following The
judgment Of The Three-Judge Bench In Rameshbhai
Chandubhai Rathod (2) V. State Of Gujarat, (2011) 2 SCC
764 We Convert The Death Sentence Awarded To The
appellant To Imprisonment For Life And Direct That The Life
sentence Of The Appellant Will Extend To His Full Life Subject
to Any Remission Or Commutation At The Instance Of The
Government For Good And Sufficient Reasons."
In Raju V State Of Haryana, (2001) 9 SCC 50, The
appellant Had Committed The Rape And Murder Of The 11 Year
old Deceased After Enticing Her With Toffees. On His Arrest, His
shirt And And Pant Had Bloodstains And His Underwear Had
blood And Seminal Stains. The Accused Gave No Explanation Of
the Blood Stains. The Supreme Court Held That The As The
appellant Appeared To Have Acted Without Premeditation In
giving Two Brick Blows To The Deceased After She Threatened To
expose Him, And Had No Criminal Antecedents, And It Could Not
be Concluded That He Would Be A Danger To Society, The
sentence Of Death Awarded By The Courts Below Be Commuted
to A Sentence Of Imprisonment For Life.
In Amrit Singh V. State Of Punjab, (2006) 12 SCC 79,
where A 6 Or 7 Year Old Child Was Raped And Murdered By The
31 Year Old Accused, The Apex Court Had Converted The
sentence Of Death To Life Imprisonment Holding That This Was
not The Rarest Of Rare Case And The Crime May Have Been
committed Because Of A Momentary Lapse, On Part Of The The
32
accused On The Seeing The Girl At A Secluded Place, And The
deceased May Have Been Gagged Inadvertently, Without Any
intention To Kill Her. Paragraphs 21 And 22 Of The Law Report
read:
"21. The Opinion Of The Learned Trial Judge As Also The
High Court That The Appellant Being Aged About 31 Years
and Not Suffering From Any Disease, Was In A Dominating
position And Might Have Got Her Mouth Gagged Cannot Be
held To Be Irrelevant. Some Marks Of Violence Not Only On
the Neck But Also On Her Mouth Were Found. Submission Of
Mr. Agarwal, However, That The Appellant Might Not Have An
intention To Kill The Deceased, Thus, May Have Some Force.
The Death Occurred Not As A Result Of Strangulation But
because Of Excessive Bleeding. The Deceased Had Bleed
half A Litre Of Blood. Dr Reshamchand Singh, PW 1 Did Not
state That Injury On The Neck Could Have Contributed To Her
death. The Death Occurred, Therefore, As A Consequence Of
and Not Because Of Any Specific Overt Act On The Part Of The
appellant.
22. Imposition Of Death Penalty In A Case Of This Nature, In
our Opinion, Was, Thus, Improper. Even Otherwise, It Cannot
be Said To Be A Rarest Of Rare Cases. The Manner In Which
the Deceased Was Raped May Be Brutal But It Could Have
been A Momentary Lapse On The Part Of The Appellant,
seeing A Lonely Girl At A Secluded Place. He Had No
premeditation For Commission Of The Offence. The Offence
may Look Heinous, But Under No Circumstances, Can It Be
said To Be A Rarest Of Rare Cases."
In Rameshbhai Chandubhai Rathod (2) V. State Of Gujarat,
(2011) 2 SCC 764 There Was A Difference Of Opinion Of The
two Judges Who Had Heard The Case On The Sentence To Be
awarded. Accordingly The Matter Was Referred To A Larger
Bench Which Observed That As The Accused Was About 27
33
years Of Age Who Had Raped And Killed A Child Studying In A
school In Class IV, But As There Was No Finding Regarding The
possible Reformation And Rehabilitation Of The Appellant And
the Possibility Of His Becoming A Useful Member Of Society
on Being Given The Opportunity, Hence The Proper Course In
the Case Would Be To Substitute The Sentence Of Death With
a Sentence Of Imprisonment For Life Subject To Remissions
and Commutation At The Instance Of The Government For
good And Sufficient Reasons. Paragraphs 9 And 10 Of The Law
report At SCC Page 767, Read As Follows:
"9. Both The Hon'ble Judges Have Relied Extensively On
Dhananjoy Chatterjee Case,(1994) 2 SCC 220 . In This
case The Death Sentence Had Been Awarded By The Trial
court On Similar Facts And Confirmed By The Calcutta High
Court And The Appeal Too Dismissed By This Court Leading
to The Execution Of The Accused. Ganguly, J. Has,
however, Drawn A Distinction On The Facts Of That Case
and The Present One And Held That As The Appellant Was A
young Man, Only 27 Years Of Age, It Was Obligatory On
the Trial Court To Have Given A Finding As To A Possible
rehabilitation And Reformation And The Possibility That He
could Still Become A Useful Member Of Society In Case He
was Given A Chance To Do So.
10. We Are, Therefore, Of The Opinion That In The Light Of
the Findings Recorded By Ganguly, J. It Would Not Be
proper To Maintain The Death Sentence On The Appellant."
Both The Hon'ble Judges Have Relied Extensively On
Dhananjoy Chatterjee Case,(1994) 2 SCC 220 . In This
case The Death Sentence Had Been Awarded By The Trial
court On Similar Facts And Confirmed By The Calcutta High
Court And The Appeal Too Dismissed By This Court Leading
to The Execution Of The Accused. Ganguly, J. Has,
34
however, Drawn A Distinction On The Facts Of That Case
and The Present One And Held That As The Appellant Was A
young Man, Only 27 Years Of Age, It Was Obligatory On
the Trial Court To Have Given A Finding As To A Possible
rehabilitation And Reformation And The Possibility That He
could Still Become A Useful Member Of Society In Case He
was Given A Chance To Do So."
In Akhtar V. State Of U.P., (1999) 6 SCC 60, For The Rape And
murder By Gagging Of A Young Girl, Who The Appellant Came
across At A Lonely Place, The Sentence Of Death Awarded To The
accused Was Converted To One Of Life Imprisonment And It Was
observed In Paragraph 3 At SCC Pp. 62-63:
"3. ... But In The Case In Hand On Examining The Evidence
of The Three Witnesses It Appears To Us That The Appellantaccused
has Committed The Murder Of The Deceased Girl Not
intentionally And With Any Premeditation. On The Other
hand The Appellant-accused Found A Young Girl Alone In A
lonely Place, Picked Her Up For Committing Rape; While
committing Rape And In The Process By Way Of Gagging The
girl Has Died. The Medical Evidence Also Indicates That The
death Is On Account Of Asphyxia. In The Circumstances We
are Of The Considered Opinion That The Case In Hand Cannot
be Held To Be One Of The Rarest Of Rare Cases Justifying The
punishment Of Death."
In Mohd. Chaman V. State (NCT Of Delhi) (2001) 2 SCC 28,
where The 30 Year Old Accused Had Raped And Killed A Oneand-
a-half Year Old Child, Even After Describing The Crime As
heinous, And That The Appellant Had No Control Over His Carnal
desires, The Apex Court Had Converted The Death Penalty To
one Of Imprisonment For Life Holding That A Humanist Approach
needed To Be Followed And It Could Not Be Held That The
appellant Was Such A Dangerous Person Who Would Endanger
the Community. It Was Held At Page 40 Of SCC Para 25:
35
"25. Coming To The Case In Hand, The Crime Committed Is
undoubtedly Serious And Heinous And The Conduct Of The
appellant Is Reprehensible. It Reveals A Dirty And Perverted
mind Of A Human Being Who Has No Control Over His Carnal
desires. Then The Question Is: Whether The Case Can Be
classified As Of A ''rarest Of Rare' Category Justifying The
severest Punishment Of Death. Treating The Case On The
touchstone Of The Guidelines Laid Down In Bachan Singh,
(1980) 2 SCC 684, Machhi Singh, (1983) 3 SCC 470 And
other Decisions And Balancing The Aggravating And
mitigating Circumstances Emerging From The Evidence On
record, We Are Not Persuaded To Accept That The Case Can
be Appropriately Called One Of The ''rarest Of Rare Cases'
deserving Death Penalty. We Find It Difficult To Hold That The
appellant Is Such A Dangerous Person That To Spare His Life
will Endanger The Community. We Are Also Not Satisfied That
the Circumstances Of The Crime Are Such That There Is No
alternative But To Impose Death Sentence Even After
according Maximum Weightage To The Mitigating
circumstances In Favour Of The Offender. It Is Our Considered
view That The Case Is One In Which A Humanist Approach
should Be Taken In The Matter Of Awarding Punishment."
In Surendra Pal Shivbalakpal V. State Of Gujarat, (2005) 3
SCC 127 Which Was A Case Where An Impecunious 36 Year Old
U.P. Migrant Labourer Had Raped A Young Girl After Being
rebuffed By Her Mother For Demanding Sexual Favours, In
which The Death Penalty Awarded To The Accused Was
converted To Life Imprisonment As There Was No Material For
showing That The Appellant Was Involved In Any Other Case Or
that He Would Be A Menace To Society. In Para 13 It Was Held
(SCC P. 131):
"13. The Next Question That Arises For Consideration Is
whether This Is A ''rarest Of Rare Case'; We Do Not Think That
this Is A ''rarest Of Rare Case' In Which Death Penalty Should
36
be Imposed On The Appellant. The Appellant Was Aged 36
years At The Time Of The Occurrence And There Is No
evidence That The Appellant Had Been Involved In Any Other
criminal Case Previously And The Appellant Was A Migrant
labourer From U.P. And Was Living In Impecunious
circumstances And It Cannot Be Said That He Would Be A
menace To Society In Future And No Materials Are Placed
before Us To Draw Such A Conclusion. We Do Not Think That
the Death Penalty Was Warranted In This Case."
Learned G.A. On The Other Hand In His Written Arguments
placed Reliance On Mohd. Mannan V State Of Bihar, (2011) 5
SCC 317, Rajendra Prahladrao Vasnik V. State Of Maharashtra,
(2012) 4 SCC 37, And Bantu V. State Of U.P., (2008) 11 SCC
113, Where The Apex Court Has Held That On Balancing The
aggravating With The Mitigating Circumstances, The Only
punishment That Would Suffice In Those Cases Looking To The
brutality Of The Crimes, Was A Sentence Of Death.
In Mohd. Mannan, A 7 Year Old Girl Had Been Done To
death By A 43 Year Old Mason Who Was Working In The House.
He Had Sent The Victim Child To Buy Betel To A Shop After
winning Her Trust. He Thereafter Followed Her To The Shop, And
took Her Away On A Bicycle To A Lonely Spot, Where He
murdered Her After Causing Various Injuries To Her For
satisfying His Lust. None Suspected His Evil Designs, As The
victim Was A Thin Unattractive Girl Barely Four Feet In Height.
The Apex Court Noticed The Brutality Of The Crime And
considered The Appellant A Menace Incapable Of Reform.
In Rajendra Prahladrao Vasnik A 3 Year Old Girl Had Been
lured Away On The Pretext Of Buying Her Biscuits Away By A 31
year Old Man With A False Identity Who Had And Won The Trust
of A Poor Family. Thereafter The Girl Had Been Brutally Raped,
and There Were Bleeding Injures On Her Nose And Mouth, And
on Her Private Parts. There Were Even Bite Marks On Her Chest.
The Deceased Was Then Left In A Naked Condition In An Open
37
field.
Bantu Was A Case Where The Appellant Had Taken Away
the 5 Year Old Deceased Vaishali With Him On The Pretext Of
getting Her A Balloon. He Had Later Been Caught In A Naked
condition Inserting A Stem/ Stick 33 Cms Into The Fragile Vagina
of The Dead Body For Masquerading The Case As One Of An
accident. Looking To The Abominable Nature Of Of The Crime The
bench Had Confirmed The Sentence Of Death Awarded To Bantu.
It Is Apparent That The Facts And Circumstances Of Each Of
these Cases Is Quite Different. In These Cases Evidence Was Led
that After Winning The Trust Of The Victim Or Her Family A Minor
girl Had Been Lured, Raped And Then Done To Death By A Wily
assailant After Some Cold Blooded Planning. In The Present
case It It Possible That The Appellant Came Upon The Victim Girl
all Of A Sudden, And Probably After Losing Control Over His
senses, He May Have Committed The Dastardly Crime. After
which He Tried To Hurriedly Conceal The Offence By Trying To Get
rid Of The Body From His House, In Which Endeavour He Was
unsuccessful.
In A Recent Decision Of The Apex Court, Shankar Kisanrao
Khade V State Of Maharashtra, (2013) 5 SCC 546, Its Earlier
decision In Sangeet V. State Of Haryana, (2013) 2 SCC 452,
was Reiterated And It Was Observed That The Appropriateness
of The "balancing Test" Of Balancing The Aggravating And
mitigating Circumstances, The Aggravating Circumstances
being The Circumstances Of The Crime, And The Mitigating
circumstances Being The Circumstances Of The Criminal Needed
to Be Reconsidered, As These Distinct And Unrelated Factors
could Not Be Put On The Same Scale. Hon'ble K.S.P.
Radhakrishnan J In His Opinion In Shankar Kisanrao Khade
noted That Even Where The Aggravating Circumstances Were
extremely Grave, Only If The Mitigating Circumstances Relating
to The Accused Were Zero Percent, I.e. There Was Complete
absence Of Any Circumstance Favourable To The Accused
38
personally With Regard To His Antecedents, Could The Case Be
considered One Where The Death Penalty Might Be Justified.
Even Then It Needed To Be Considered Whether It Was The
rarest Of Rare Case Where Only A Death Penalty Was
appropriate. In Shankar Kisanrao, The 52 Year Old Appellant
had Enticed A 12 Year Old Moderately Intellectually Challenged
girl Living With Her Grandmother, And Then Repeatedly
sodomized And Raped Her Before Strangulating Her. However
as The Appellant Had Only Been Earlier Implicated For The
murder Of His Wife And Also In A Case Under Section 380/ 457
IPC, But Was Not Convicted In Those Cases, Hence The Apex
Court Considered The High Court Allegation Against The
appellant Of Having Criminal Antecedents Not To Have Been
established, And The Case In Hand Was Therefore Not
considered The Rarest Of Rare Cases For Award Of The Death
penalty. Justice Radhakrishnan In Paragraphs 37,38 And 39 Of
the Law Report Specifically Faulted The Judgements In Mohd.
Mannan, Rajendra Prahladrao Vasnik And Bantu For Applying
the "balancing Test."
In His Separate Opinion Justice Madan B. Lokur Has
observed In Paragraph 123 Of The Law Report, That The
possibility Of Reform Or Rehabilitation Of The Appellant Was Not
ruled Out By Any Expert Evidence In Mohd. Mannan, Unlike
some Other Cases The Conviction Being Based Only On
circumstantial Evidence Was Not Held To Be A Mitigating Factor.
In The Aforesaid Background We Are Of The Opinion That
this Is Not The Rarest Of Rare Cases, Where The Special Reasons
exist For Only Awarding The Death Penalty And Where The Other
option Of Awarding A Sentence Of Imprisonment For Life Is
unquestionably Foreclosed.
In Shankar Kisanrao Khade The Apex Court Had Directed
that The Life Sentence (after Commutation Of The Death
penalty) For Murder And The Life Sentence For Rape And The
sentences Under Other Provisions Run Consecutively And Not
39
concurrently. However, We See Some Difficulties In Making The
sentences Run Consecutively And Not Concurrently, As Under
section 386(b)(iii) Cr.P.C. It Is Clarified That Whereas In An
appeal From Conviction, The Nature And Extent Of The Sentence
may Be Altered, "but Not So As To Enhance The Same."
In Another Similar Case Of Rape And Murder Of An
eighteen Year Old Girl, By A Young Painter Working In The
house, Who Was Suddenly Overwhelmed By A Sense Of Lust,
and Who After Committing The Murder Tried To Conceal The
corpse In A Trunk In The House, This Court In Sanjay Kumar V
State Of U.P., (2012) 77 ACC 65 After Relying On The Decisions
in Ramraj V State Of Chattisgarh, (2010) 1 SCC 573, Mulla V
State Of U.P, (2010) 3 SCC 508, And Rameshbhai Chandubhai
Rathod (2) V State Of Gujarat (2011) 2 SCC 764, Had
commuted The Sentence Of Death, To A Sentence Of
imprisonment For Life For The Remainder Of The Appellant's Life
subject To The Clemency Powers Of The President Or Governor
under Articles 72 Or 161 Or The State's Powers Of Remission
under The Relevant Statute. In An Appeal Preferred Against The
said Judgment In State Of U.P. V Sanjay Kumar, Reported In
(2012) 8 ACC 537, The Apex Court After Reviewing The Case
law On The Point, Had Regarded This Approach Of The High
Court As Finding An Appropriate Via Media, For Situations Where
the Court May Be Loath To Impose A Sentence Of Death For Any
extenuating Circumstances, And Yet May Feel That The Routine
sentence For Life Which In Practice Works Out To A Sentence Of
14 Years Or 20 Years In View Of Guidelines Framed By The State
was Grossly Inadequate Or Disproportionately Small. For Such
offences, The Sentencing Or The Appellate Court For
proportionate Sentencing Whilst Doing Away With The Death
sentence In A Particular Case, Could Impose A Sentence Even
extending For The Prisoner's Entire Remaining Natural Life, Or
for A Fixed Term Over And Above The Mandatory 14 Years
actual Jail Term Under Section 433 A Cr.P.C, Subject To The
40
State Retaining Its Powers Of Exercise Of Clemency Or For
granting Remission, In A Bona Fide And Non-arbitrary And
objective Manner.
That A Minimum Sentence For The Prisoner's Whole Life Or
for A Fixed Number Of Years Over And Above The Statutory
minimum Of 14 Years Can Be Prescribed By The Court Before
the Accused Is Entitled To The Benefit Of The Powers Of
remission To Be Exercised By The Government And The
concerned Authorities Under The Appropriate Statutory
provisions, Has Been Held To Be Valid By The Three Judge
decision In Swamy Shraddananda V. State Of Karnataka,
(2008) 13 SCC 767. Recently Sahib Hussain V. State Of
Rajasthan, (2013) 9 SCC 778 Has Held The View Of The Two
judge Decision In Sangeet V. State Of Haryana (2013) 2 SCC
452 To Be Per Incuriam On The Point Where It Had Adversely
commented On The View Of The Larger Bench In Swamy
Shraddananda (2), Regarding The Permissibility Of Prescribing
a Minimum Sentence In Life Imprisonment Matters Without
referring The Case To The Chief Justice For Constituting A Larger
bench. This View In Sahib Hussain Is In Accord With The View
expressed In The Constitutional Bench Decision In Central
Board Of Dawoodi Bohra Community V. State Of Maharashtra,
(2005) 2 SCC 673 On The Inappropriateness Of A Smaller Bench
doubting The Correctness Of A Larger Bench Decision Without
referring The Matter To The Chief Justice For Constituting A
bench Larger Than The Bench Which Has Expressed The Opinion
which Was Being Doubted.
On These Considerations We Are Of The View That The
judgement Of The Trial Judge Convicting The Appellant As Above
be Upheld. However The Death Sentence Awarded To The
appellant Under Section 302 IPC Is Commuted To A Sentence Of
imprisonment For Life, Which Is To Run For The Remainder Of The
appellant's Natural Life, Subject To A Bona Fide Exercise Of The
clemency Powers Of The President Or Governor Or The Powers
41
of Remission Of The State Under The Appropriate Statutory
provisions. The Remaining Sentences Awarded By The Trial
Court Are Upheld.
Adverse Comments On Manner Of Investigation
and Trial
Before Parting However We Must Express Our Unease With
the Casual Manner In Which The Investigation And Trial In This
case Has Been Conducted.
No Doubt This Court Relying On The Observations In Zahira
Habibullah Sheikh (5) V. State Of Gujarat, (2006) 3 SCC 374,
recommending To Courts Not To Act As Mute Spectators And
mere Recording Machines, This Court Had In The Interest Of Of
justice For The Accused, Victim And Society Acted Proactively
and Called For And Examined The Samples Of Hair Of The
deceased And Appellant And Other Materials Collected In This
case On 29.10.13 Which Were Thereafter Sent To The C.D.F.D.,
Hyderabad For DNA Analysis. As Mentioned Above, According
to The DNA Report The Hair Of The Deceased, Which Was Cut By
the Doctor Conducting The Post Mortem Examination, Was Of
the Same Person Whose Hair Was Found In The Room And Bed In
possession Of The Appellant Also The Hair, Which Was Taken
from Between The Fingers Of The Deceased Matched With The
hair Of The Appellant, Which Has Been Cut In Jail On The Orders
of This Court. The Said Material As We Have Shown Above Has
gone A Long Way For Establishing The Complicity Of The
appellant In This Offence. However, We Find Gross Negligence In
the I.O. And Ineptitude On Part Of The The Trial Court In Not
themselves Sending The Hair Samples, Which Were Collected At
the Place Of Occurrence And From The Deceased, For D.N.A.
examination Which Were Crucial For Establishing The Complicity
of The Appellant In This Offence. We Also See Negligence On
part Of The The I.O. In Not Examining Dr. R.K. Singh, Who Had
42
initially Taken The Hair Samples And Blood Sample Of The
appellant And Also In Not Keeping The Sample In A Proper
condition Causing Us To Find That The Seal And Bottle Of The
sample Were Damaged. We Had Therefore Directed That Fresh
sample Of Hair Of The Appellants Be Cut And Collected In The Jail
where He Was Lodged By The Order Dated 29.10.13. It Is Also A
source Of Anxiety To Us That In A Case Of Such Gravity As The
present Case, The Investigating Officer Has Only Examined Two
witnesses Of Fact Viz. P.W. 1 Baise Ali And P.W. 2 Afzal And
only Three Other Witnesses P.W. 3 Dr. Amit Kumar, P.W. 4
Constable Parul Yadav And Himself PW 5 S.I. Ashok Kumar
Singh.
We Must State Categorically That This Is Not The Manner
to Prove A Charge Of Rape And Murder Of A 12 Year Old Girl,
and Actually If We Had Not Ourselves Sent The Samples Of Hair
of The Deceased And The Hair Found At The Place Of Incident
which Had Been Collected And Got A Fresh Sample Of The Hair Of
the Appellant Cut And Got The Same Sent For DNA Matching To
th The CDFD, Hyderabad, The Order Of Conviction May Have
suffered From Some Infirmities In View Of The Improbabilities
alluded To By The Learned Counsel For The Appellant, And There
was A Risk That Such A Grave Case Of Rape And Murder A 12
year Old Girl May Have Resulted In Undeserved Acquittal,
eroding The Confidence Of The Victim And The Public In Our
system Of Justice.
It May Be Noted That This Court Has Earlier Also Adversely
commented Against Negligent Investigations In Cases Of Rape
and Murder Of Minor Girls, Viz. Criminal Capital Appeal (Jail)
No. 2531 Of 2010], Bhairo Vs. State Of U.P. And Chhotu @ Ajay
vs. State Of U.P., Capital Case No. 863 Of 2011 Which Had
ended In Unwarranted Acquittals Because D.N.A. Samples Were
not Collected Or The Accused Not Subjected To Medical
examination Or Where Witnesses Did Not Appear Or Support The
43
accused After Being Won Over, And Other Grave Lacunae Were
inadvertently Or Designedly Left By Inept Or Dishonest
investigations. This Court Had Issued Directions In Those Cases
to The Director General Of Police, U.P. To Improve The Process
of Investigations, Especially In Cases Of Rape And Murder Of
minor Girls. Which Have Been Reiterated In The On-going
Criminal Writ Petition - Public Interest Litigation No. 1797 Of
2011, Qasim Vs. State Of U.P., Where This Court Has Been
taking Steps And Issuing Directions For Improving The
techniques And Procedure For Investigations In The State Of
U.P.
We May Mention That In The Case Of Dayal Singh Vs.
State Of Uttaranchal, 2012 (8) SCC, 263, Where The Deceased
and Injured Were Said To Have Been Assaulted With Lathies, But
it Appeared That The Doctor Conducting The Post Mortem
examination And The Investigating Officer Had Colluded With
the Accused And No Blunt Object Injury Had Been Shown On The
deceased In The Postmortem Report. Also Although The Viscera
of The Deceased Was Preserved For Sending To The Forensic
Science Laboratory, It Deliberately Appeared Not To Have Been
sent. The Apex Court Noted With Approval That The Trial Court
and High Court Relying On The Evidence Of The Eyewitnesses In
preference To The Medical Report Had Held The Accused Guilty.
The Trial Court Had Even Recommended Action Against The
doctor And The Police Officer To The Director General (Health)
and DGP. The Apex Court Even Initiated Contempt Proceedings
against The Director General Health Services Of U.P. /
Uttarakhand And Director General Of Police, U.P./ Uttarakhand
under The Provisions Of The Contempt Of Court Act For Not
complying With The Directions Of The Trial Court And In Failing To
take Action Against The Errant Medical Officer And
Investigating Officer For Dereliction Of Their Duties And Also
directed That Disciplinary Proceedings Be Initiated Against
them. It Was Further Clarified That In Case The I.O. And The
44
Medical Officer Had Retired, Action Could Be Taken Against
them Even By Withdrawal Of Their Pensions. It Was Further
observed In Dayal Singh (supra) That " If Primacy Is Given To
such Designed Or Negligent Investigations, Omission And Lapse
by Perfunctory Investigation Or Omissions, The Faith And
confidence Of The People Would Be Shaken Not Only In The
enforcement Agency, But Also In The Administration Of Justice."
We Are Also Disturbed By The Manner, In Which The Trial
Judge Has Recorded The 313 Cr. P. C. Statement, Which Only
consisted Of Six Questions Compositely Putting The Case, The
witnesses And Documents To The Accused And Simply
questioning Him As To Why He Was Prosecuted And Whether He
had Anything Else To Say Or Defence To Lead, Instead Of Seeking
the Explanation Of The Accused On Each Of The Incriminating
circumstances Which Appeared Against Him In The Evidence On
record, Which Is The Requirement Of Law.
We Were Therefore Constrained To Re-frame Detailed
questions Against The Accused With The Assistance Of The
learned G.A. On All The Existing Incriminating Circumstances On
the Record, In Addition To The Further Specific Questions Which
were Framed Regarding The DNA Analysis And Other Co-related
material When The Accused Was Re-examined Under Section
313 Cr.P.C By This Court On 27.1.14.
Direction Issued To Concerned Authorities For
improving Investigations And Trials In Rape And
murder Cases
We Therefore Find It Imperative To Issue The Following
directions:-
(1) That In Cases Of Rape And Murder Of Minor Girls,
which Are Based On Circumstantial Evidence, As Far As
45
possible, Material Which Is Collected From The Deceased
or The Accused For Example Hair Or Blood Of The Victim Or
the Accused, Which Is Found On The Persons Or Clothes Of
the Victim Or The Accused Or Or At The Spot, Seminal
stains Of The Accused On The Clothes Or Body Of The
victim, Seminal Swabs Which May Be Collected From The
vaginal Or Other Orifices Of The Victim And The Blood And
other Materials Extracted From The Accused Which
constitutes The Control Sample Should Be Sent For D.N.A.
Analysis, For Ensuring That Forensic Evidence For
establishing The Participation Of The Accused In The Crime,
is Available.
(2) We Also Direct The Director General Medical Health
U.P., Principal Secretary Health, U.P., And D.G.P., U.P. To
mandate Sending The Accused For Medical Examination In
each Case For Ascertaining Whether He Has Any Injuries
caused By The Resisting Victim, Or When He Attempts To
cause Harm To Her As Is Provided Under Section 53 A Of
the Code Of Criminal Procedure Code, Which Was
introduced By Act 25 Of 2005, (w.e.f 23.6.2006). In
particular If The Rape Suspect Is Apprehended At An Early
date After The Crime, It Should Be Made Compulsory To
take Both Dry And Wet Swabs From The Penis, Urinary
tract, Skin Of Scrotum Or Other Hidden Or Visible Regions,
after Thorough Examination For Ascertaining The Presence
of Vaginal Epithelia Or Other Female Discharges Which Are
also A Good Source For Isolating The Victim's DNA And
necessary Specialized Trainings Be Imparted To The
examining Forensic Medical Practitioners For This Purpose.
(3) We Direct The Principal Secretary (Health), U.P.,
Director General (Health And Medical Services) U.P. To
prohibit Conducting The Finger Insertion Test On Rape
survivors, And To Employ Modern Gadget Based Or Other
46
techniques For Ascertaining Whether The Victim Has Been
subjected To Forcible Or Normal Intercourse. These Finger
insertion Tests In Female Orifices Without The Victim's
consent Have Been Held To Be Degrading, Violative Of Her
mental And Physical Integrity And Dignity And Right To
privacy And Are Re-traumatizing For The Rape Victim.
Relying On The International Covenant On Economic,
Social, And Cultural Rights, 1966 And The United Nations
Declaration Of Basic Principles Of Justice For Victims Of
Crime And Abuse Of Power, 1985 It Was Further Held In
Lillu V. State Of Haryana, (2013) 14 SCC 643 That No
presumption Of Consent Could Be Drawn Ipso Facto On The
strength Of An Affirmative Report Based On The
unwarranted Two Fingers Test.
(4) We Find That There Is Absence Of An Adequately
equipped D.N.A. Laboratory In U.P. Which Has Advanced
mitochondrial DNA Analysis Facilities, Comparable To The
CDFD, Hyderabad, (from Where We Were Able To Obtain
positive Results In This Case, After Unsuccessful DNA
matching In An Earlier Case [Criminal Capital Appeal (Jail)
No. 2531 Of 2010], Bhairo Vs. State Of U.P.(decided On
6.9.11) Where This Court Had Sent The Sample Of Vaginal
smear Slides And Swabs And Appellant's Underwear To The
U.P. DNA Laboratory, Viz. Forensic Science Laboratory,
Agra), And We Direct That Such A DNA Centre Comparable
to The CDFD Be Established In The State Of U.P. At The
earliest So That Courts And Investigating Agencies Are Not
compelled To Send DNA Samples At High Costs To The
specialized Facility Of The CDFD At Hyderabad.
(5) The Director General Of Prosecution, U.P., The
Director General Of Police U.P. And Director General
Medical Health Should Ensure That Blind Cases Of Rape
47
and Murder Of Minor Girls Or Other Complicated Cases Are
thoroughly Investigated By Efficient Investigating
Officers. Effective Steps Should Be Taken For Forensic
investigations By Collecting And Promptly Sending For
DNA Analysis All Possible Incriminating Material Collected
from The Deceased, Victim, Accused, And At The Scene Of
the Crime Etc. Which May Give Information About The
identity Of The Accused And His Involvement In The Crime,
after Taking Precautions For Preventing The Contamination
of The Material. This Is Necessary To Prevent Courts Being
rendered Helpless Because The Prosecution And
investigating Agency Are Lax In Producing Witnesses Or
because Witnesses Have Been Won Over Or Are Reluctant
to Depose In Court. Steps Should Also Be Taken For
preventing Witnesses From Turning Hostile, By
prosecuting Such Witnesses, And Even By Cancelling Bails
of Accused Where They Have Secured Bails Where It Is
apparent That Efforts Are Being Made To Win Over
witnesses And By Providing Witnesses With Protection
where Ever Necessary So That They Can Give Evidence In
Court Without Fear Or Pressure. In Case There Is Reason To
think That The Investigating Officers Or Medical Officers Or
others Have Colluded With The Accused, Strict Action Be
initiated Against The Colluding Officials As Was
recommended In The Case Of Dayal Singh Vs. State Of
Uttaranchal (supra). It Is Necessary That Policies And
protocols Be Developed By The DGP, U.P., Principal
Secretary Health, Director Medical Health U.P., Director
of Prosecutions, U.P., For The Aforesaid Purposes.
(6) The JTRI, Lucknow Must Ensure That Proper Training
is Given To Judicial Officers On Framing Proper Questions
for 313 Cr. P. C. Examination, So That The Entire
circumstances Of The Case Are Put To The Accused And
they Cannot Claim The Benefit Of Being Inadequately
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questioned About The Incriminating Circumstances Of The
case
Copies Of This Order Should Also Be Placed On The Record
in The Case Of Qasim V. State Of U.P., Criminal Writ Petition -
Public Interest Litigation No. 1797 Of 2011 We Also Direct The
Registry To Forthwith Forward This Order To The Respondents
above Mentioned Who Are To Submit A Compliance Report Of
these Directions In The On-going PIL, Qasim (supra) Within 4
weeks.
Subject To The Aforesaid Observations Modifying The
sentence And Issuing Directions As Above This Appeal Stands
dismissed.
The Reference For Confirming The Death Sentence Is Also
rejected.
The Registry Is Directed To Circulate Copies Of This
judgement To All District Judges For Ensuring Compliance Of The
direction Herein Above.

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