Allahabad High Court
Prem Naresh vs State Of U.P. on 23 July, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:117279-DB A.F.R. Reserved on 9.7.2024 Delivered on 23.07.2024 Court No. - 46 Case :- CAPITAL CASES No. - 7 of 2023 Appellant :- Prem Naresh Respondent :- State of U.P. Counsel for Appellant :- Rajiv Lochan Shukla Counsel for Respondent :- A.G.A. Hon'ble Arvind Singh Sangwan,J.
Hon'ble Mohd. Azhar Husain Idrisi,J.
(Per Hon'ble Arvind Singh Sangwan,J.)
1. Reference No. 06 of 2023 has been made by the Court of Special Judge (POCSO Act), Auraiya for confirmation of capital punishment awarded to appellant Prem Naresh in Special Sessions Trial No. 1276 of 2021. The Jail Appeal being Capital Case No.7 of 2023 has been filed by the appellant challenging the judgment of conviction dated 09.02.2023 holding the appellant guilty of offence under Section 376 AB of IPC and Section 5/6 of POCSO Act and the order of sentence dated 14.02.2023, vide which the appellant was awarded death sentence to be hanged till death with fine of Rs.5,00,000/- (five lacs). In the even of non payment of fine, additional rigorous imprisonment for one year. It is directed that 50% of the payment of fine will be payable to the victim.
2. The Reference and Appeal were admitted. The Trial Court's record is received and paper books are ready.
3. Heard Sri Rajiv Lochan Shukla, learned Amicus Curiae assisted by Sri Sarvesh Kumar Dubey, Advocate for the appellant, Sri Saurabh Pathak, learned counsel for victim/informant and Sri Patanjali Mishra, learned A.G.A. for the State.
4. With the assistance of learned counsel for the parties, the entire evidence is re-scrutinized and re-appreciated.
5. Facts of the case as per the informant/PW-1 who is the maternal grandfather of the victim (name not disclosed and referred as 'Victim S') are as under :
"सेवा में, श्रीमान प्रभारी निरीक्षक महोदय कोतवाली विधूना जनपद औरैया।
महोदय निवेदन है कि प्रार्थी मिथलेख पुत्र कठोरीलाल शंखवार (कोरी) निवासी ग्राम रतनपुर बन्यरा थाना विधूना जनपद औरेया का निवासी है आज दिनांक 20.10.2021 को समय करीब 2.30 बजे दिन मेरी नातिन S...... उम्र करीब 03 वर्ष अपने दरवाजे पर खेल रही थी मेरे गांव के निवासी शिवप्रेम का साला प्रेमनरेश पुत्र भजनलाल शंखवार (कोरी) निवासी ग्राम धनवाली थाना विघूना जनपद औरैया में मेरी नातिन S...... उपरोक्त को बिस्कुट खिलाए जाने का लालच देकर ले गया कुछ देर बाद मेरी नातिन S...... की रोने की आवाज सुनकर मैं व मेरा पुत्र करन सिंह भागकर गये तो मेरी नातिन शिवप्रेम के कमरे के अन्दर नगिन अवस्था में पडी थी हम लोगो के देखकर प्रेमनरेश मौके से भाग गया मेरी नातिन के साथ प्रेमनरेश उपरोक्त ने बलात्कार किया है मैं अपनी नातिन को लेकर थाने पर आया हूं मेरी नातिन के पेशाब के रास्ते से खून भी निकला है।
श्रीमान जी से निवेदन है रिपोर्ट लिखकर कानूनी कार्यवाही करने की कृपा करें।
ह० मिथलेश कुमार प्रार्थी लेखक मिथलेश पुत्र कठोरीलाल करन सिंह निवासी रतनपुर वन्थरा पुत्र मिथलेश निवासी थाना विधूना जिला औरैया रतनपुर वन्थरा 789784343 थाना विधूना, जिला औरैया दिनांक 20.10.2021" 8126547379 "
6. On the basis of the written complaint given by Mithalesh (PW-1), Chick F.I.R. was registered as Case Crime No. 516 of 2021 on 20.10.2021 at 17.53 hrs under Section 376 AB of IPC and Section 5/6 of Prevention of Child from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act')
7. The F.I.R. was registered against the appellant-Prem Naresh aged about 29 years.
8. The victim was sent for medical examination and as per the Medico Legal Examination conducted by Dr. Seema Gupta (PW-2), the injuries found on the body of the victim as reported in the Medico Legal Report are as under :
"Vaginal tear of size 3 x 3 cm at 6 O clock position involvement of anal sphincter and anal canal at upper side fresh bleeding present. Clotted blood and fresh blood present over perineal region.
Hymen torn.
Perineum tear.
Blood clot present IV degree perineal tear 3 x 3 cm.
Vagina, valva anal sphinceter and anus tear fresh bleeding present"
During medical examination of the victim, Dr. Seema Gupta (PW-2) reported as under :
"Injury present at vagina valva anus vaginal tear present with anal sphinter tear bleeding present from anus and vagina. This may be due to sexual assault."
On completing the medical examination, PW-2 gave her final opinion which is as under :
"A case of sexual assault vaginal and anus tear, bleeding present. This may be due to sexual assault."
9. Thereafter, the police got recorded the statement of mother of the victim under Section 164 of Cr.P.C. (Ex.Ka-4) which reads as under :
"ब्यान मेरा नाम सुमन देवी है। मेरी उम्र 27 साल है। मैं पढी-लिखी नहीं हूं। Dt 20.10.2021 को सुबह 11 बजे मेरी बेटी S...... खेलने के लिए निकल गयी थी। जब 2-3 घण्टे हो गये तो उसके भाई-बहन आ गये तो उन्होने पूछा कि मम्मी बिट्टी कहां है। फिर सब लोग ढूढंने लगे। हमारे घर के बराबर में जो घर है वहां देखा तो एक अंदर कमरे में कुण्डी लगी थी। बेटी के बाबा और चाचा गये और धक्का मारा तो दरवाजा खुला उसमें मेरी बेटी मिली और वहां प्रेमनरेश मिला। जब बेटी मिली तो उसके ऊपर की बनियान नहीं थी,गले में चांदी का हाय पहने थी वह भी नहीं मिली, नीचे के कपडे खून में सने थे और उसकी पेशाब वाली जगह से खून निकल रहा था। प्रेम नरेश जब मिला तब वह अपना कपडा बदल रहा था। मुझे और कुछ नहीं कहना है।"
10. The statement of victim-S under Section 164 Cr.P.C. was also recorded on the same date i.e. on 20.11.2021 which reads as under :
"ब्यान-प्र० (1) तुम्हारा नाम क्या है?
उ० S......
प्र० (2) सच बोलना चाहिये या झूठ?
उ०- सच्ची प्र० (3) क्या हुआ था तुम्हारे साथ?
उ० बोरी में डाल लिया था। पकड लिया था। वहां पर ले गये थे। कुण्डी लगा ली थी। आंखे बंद कर दी थी। गाल नोच रहे थे। गला बांध लिया था। बाबा को बुलाय मैंने। मुंह नोच रहे थे। मुंह में हाथ रख कर दबाया ( पीडिता ने इशारा करके बताया)। पीडिता ने पिशाब की जगह पे इशारा करके बताया कि यहां पर मारा था। उलटा लिटाया था। बोरी पे लिटाया।"
11. The police arrested the accused and on his pointing out effected the recovery of blue coloured underwear and army coloured lower concealed in a plastic bag. Thereafter, the Investigating Officer sent the vaginal swab which was handed to him by PW-2 along with other articles to Forensic Science Laboratory for DNA examination.
12. During the investigation, statements of other prosecution witness under Section 161 Cr.P.C. were also recorded. On completion of the investigation, charge-sheet against accused-appellant, Prem Naresh, was submitted under Section 376 AB of IPC read with Section 5/6 of the POCSO Act. A copy of the charge-sheet was supplied to the accused. Later on, the Trial Court framed the charges under the aforesaid sections which were read over to the accused. The accused did not plead guilty and claimed trial. The accused, as per the request, was provided assistance with a Assistant Legal Defence Counsel by the Trial Court.
13. In the prosecution evidence, Mithalesh Kumar (PW-1)/Informant appeared and stated on the line of information given in the complaint forming basis of the F.I.R. This witness stated that at about 2.00 PM, he was present in his house and his maternal grandson and granddaughter, Yash and Sakshi, returned from the school and enquired about the victim. Finding that she is missing, they started searching for her, for about one and a half hours. In the mean time, they heard cries of the victim from the abutting house. When they entered the house by breaking the door, the saw that the victim was lying on a plastic bag in a room where fodder was stored. Accused-Prem Naresh was also sitting there and on seeing him ran away from the spot. The victim was in a very bad condition and was not in her senses. She was bleeding from her vagina. The abutting house was of Shiv Prem who is brother-in-law of the accused, and accused used to visit. The victim knew the accused as maternal uncle of Himanshu (Mama of Himanshu). On the pretext of giving her biscuits, the accused took her in the fodder room and caused injuries on her sexual organs. Thereafter, PW-1 gave the complaint, which was scribed by his son-Karan Singh, to the police which is Ex.Ka-1. Thereafter, the police took the victim to Government Hospital, Auraiya for medical examination. Considering the poor condition of the victim, she was referred to Saifai Hospital where she remained admitted for one night and from there she was referred to S.G.P.G.I., Lucknow where she remained admitted for 10-12 days.
14. This witness proved the birth certificate of the victim, according to which, her date of birth is 3.10.2018. PW-1 stated that the victim has already undergone one operation and is still under treatment and the Doctor has advised for one more operation. In cross examination, this witness stated that at the time of incident, the victim was wearing underwear and banyan. He stated that in the complaint, he has not mentioned about breaking open the door and has not shown broken latch to the Investigating Officer. He further stated that he has normal relationship with his neighbour-Shiv Prem and both families frequently visit each other.
15. In further cross examination, he stated that when the accused was running away from the spot, he was caught hold by the villagers. He was wearing a green coloured shirt and white coloured pant. The shirt of the accused was blood-stained. The villagers gave beatings to the accused. A suggestion was given to this witness that due to enmity with his neighbour-Shiv Prem, a false case of rape was planted on the accused. It was also suggested that when his daughter-in-law, Suman (mother of the victim) had taken the victim for answering the call of the nature, she slipped and suffered injury on her sexual organs from a peg installed for tying the cattle.
16. Dr. Seema Gupta, Medical Officer, Government Hospital, Auraiya (PW-2) stated that on 20.10.2021, the victim was brought for her medical examination along with her family members who had given the following information which is as under :
"दिनांक 20.10.2021 समय दोपहर 1.30 गली में खेल रही थी S.........। लगभग 2 बजे दोपहर में अनार कली ने बहोसी हालत में खून से लस्तपत S......... को आशा को दिया उसने बताया कि यह वरोसी में डली थी। मुझे S......... मुझे ताऊ भूस में उठाकर ले गया था। पिसाब के रास्ते से खून आ रहा है। और दर्द हो रहा है। पीडिता ने जो बताया वही लिखा करन सिंह (चाचा) आशादेवी(दादी) मिथलेश कुमार (बाबा)"
This witness further stated as under :
"पीडिता की योनी का रास्ता लैट्रिन के रास्ते तक फटा हुआ था। चोट से ताजा खून आ रहा था। पीडिता गुप्तागों पर तथा चारों तरफ ताजा जमा हुआ खून था। पीडिता की योनि का स्त्राव का स्लाइड बनाकर शुक्राणु परीक्षण हेतु पैथालाजी भेजा था। पीडिता की योनि का मुख और लैट्रिन के रास्ते और छाती का स्वाब बनाकर डी०एन०ए० परीक्षण हेतु विधि विज्ञान प्रयोगशाला भिजवाया था। पीडिता के रक्त का नमूना लेकर विधि विज्ञान प्रयोगशाला भिजवाया था। पीडिता के योनि तथा लैट्रिन के रास्ते की चोटे पीडिता के साथ लैगिंक हमले के कारण आयी थी। पीडिता के परिवारीजनों के अनुसार पीडिता की उम्र तीन वर्ष थी। दिनांक 27.11.2021 को मेरे द्वारा पीडिता की पूरक चिकित्सीय आख्या तैयार की गयी थी जिसके अनुसार पीडिता के गुप्तांगों पर जो चोटे आयी थी वह लैगिंक हमले के कारण आयी थी। पीडिता की हालत ज्यादा खराब होने की वजह से पीडिता को प्राथमिक उपचार देकर 108 ऐम्बूलेन्स द्वारा सैफई भेजा गया था। पूरब चिकित्सीय आख्या पत्रावली में कागज संख्या 11क/1 व 11क/2के रूप में संलग्र है। जो मेरे द्वारा तैयार की गयी है। मेरे द्वारा हस्ताक्षरित है। जिसकी मैं पहचान व पुष्टि करती हूं। जिस पर प्रदर्श क 2 डाला गया।पत्रावली में शामिल कागज संख्या 9क/1 लगायत 9क/8 पीडिता की चिकित्सीय आख्या है। जो मेरे द्वारा तैयार की गयी है मेरे द्वारा हस्ताक्षरित है जिसकी मैं पहचान पुष्टि करती हूं। जिस पर प्रदर्श क 3 डाला गया। "
This witness proved the MLC Report as Ex.Ka-2 & 3. She has also made a sketch regarding injuries sustained by victim as Ex.Ka-3. In cross examination, this witness stated about clothes worn by the victim at the time of the examination. On a specific question, the following reply was given :
"प्रश्न- पीडिता की उम्र पीडिता के माता-पिता के बताने पर आपने लिखी थी उत्तर- जी,मैंने पीडिता की उम्र माता-पिता के बताने पर नाम पता के साथ कालम नं०-4 में लिखी थी। पीडिता की उम्र जन्म प्रमाण पत्र के आधार पर नहीं लिखी थी, क्योंकि वो जन्म प्रमाण पत्र लेकर नहीं आये थे। पीडिता के गुप्तांग पर ताजा खून आ भी रहा था, और कुछ जमा हुआ था। पीडिता के नुकीले चीज पर गिरने की बात नहीं बताई थी। इसलिये मैं नहीं बता सकती,कि गिरने से चोट आ सकती है या नहीं। यदि कोई नुकीली चीज पर गिरे तो उसके गुप्तांगो में चोट आयेगी लेकिन गुप्तांग और लेट्रिन का रास्ता एक साथ नहीं फटेगा।"
17. Suman (PW-3), the mother of the victim, also deposed on the line of PW-1 and stated that the victim knew the accused as uncle of Himanshu (Mama of Himanshu) and when they broke open the door, she saw that her daughter, Victim-S, is lying naked on a plastic bag in fodder room and accused Prem Naresh was also in the room and, thereafter, he ran away.
This witness also stated that when she asked from the victim, she stated that accused took her on the pretext of giving biscuits and by taking her in fodder room, he caused injuries on her sexual organs by tying her hands. This witness also stated that her statement as well as the statement of the victim was recorded by the Magistrate under Section 164 of Cr.P.C. which she proved as Ex.Ka-4.
In cross examination, she stated that many people gathered at the place of occurrence and with regard to catching hold of the accused she stated as under :
"जिस समय घटना स्थल वाले कमरे के किबाड तोडे जा रहे थे उस समय भीड में करीब दो सौ लोग वही खडे थे। जैसे ही दरवाजा टूटा मुल्जिम भागा वैसे ही दरवाजे पर पकड लिया। उस समय वह लोअर व बनियान पहने हुए था। उस कमरें में दो दरवाजे थे। ये दोनो दरवाजे मैंने देखे थे। कमरा के आगे बरामदा बना है। उसमें आगे भैस बंधी थी, अलमारी में कपडे रखे थे, बरोसी बनी हुई थी। इसके अलावा मैंने और कुछ नहीं देखा। "
She denied a suggestion that on account of some enmity with the sister of the accused, a false case was registered.
Victim S appeared as PW-4 and her statement read as under :
"ब्यान धारा 164 सी०आर०पी०सी० न्यायालय की अनुमति से खोला गया और उसमें रखा ब्यान पीडिता पीडिता की मां को दिखाया और पढकर सुनाया गया तो पीडिता की मां ने कहा कि यह वही ब्यान है जो पीडिता के बताने पर मजिस्ट्रेट साहब ने मेरे समक्ष लिखा था, जिस पर पीडिता की फोटो चस्पा है। जिसकी मैं पहचान व पुष्टि करती हूं। ब्यान को पत्रावली में कागज संख्या 29क/1के रूप में संलग्न किया गया जिस पर प्रदर्श क 4 डाला गया। ब्यान U/S 164 CRPC प्रदर्श क-4 को मुख्य परीक्षा के रूप में पढा जाय बचाव पक्ष के अधिवक्ता को जिरह की अनुमति दी गयी।
X X Cross by Defence.
मुझे खाने में टॉफी अच्छी लगती है। हिमांशू के मामा ने मुझे टॉफी दी थी।
To Court हिमांशू के मामा ने मुझे पकड लिया था और आंख पर पट्टी बाँध दी और नोंच लिया था और पीडिता ने हाथ के इशारे से बताया कि पेशाब की जगह चोट पहुँचाई थी।"
18. Parveen Kumar (PW-5) stated that on receiving complaint, he recorded G.D. No.44 as Ex.Ka-5 and Chick F.I.R. as Ex.Ka-6. In cross examination, this witness was put a question whether he had seen the watch at the time when G.D. and F.I.R. was registered. This witness stated that since the time was visible on the computer screen, it was recorded from there.
19. Rajesh Kumar Singh (PW-6), the first Investigating Officer, stated that on 20.10.2021, he received the information on which F.I.R. was registered, statements of victim, her mother and one Renu Devi were recorded in CD. He prepared the naksha nazri which is Ex.Ka-7. He further stated that the forensic team reached at the spot and recovered one packet, one red coloured doll made of cloth, one pair of hawai slippers, one torn piece of masala and 10-12 hairs and by sealing these articles, the same were handed over to him. Thereafter, vide CD No. 2 dated 20.10.2021, the accused was arrested by S.H.O. Shashi Bhushan Mishra and the confession statement of accused was recorded in CD (Ex.Ka-8). Vide CD No.3 dated 27.10.2021, medical report of the victim and, for DNA test, blood samples of victim and accused were taken and sent to Forensic Science Laboratory, Agra.
In his cross examination, the witness stated that on receiving the chik FIR on 20.10.2021, he had gone to village Ratanpur but accused was not arrested in his presence and was arrested on next day from near a canal by S.H.O. and other police officials. This witness stated that at the spot, inside the fodder room no rapper of toffee or biscuit was found. There was a wooden door in the room and there was only one door which was not broken. He had not seen the broken latch. This witness also stated about the recovery effected by the Forensic Team and stated that during his examination, he has not mentioned about the bloodstaines on the plastic bag. This witness further stated about the recovery of an army coloured lower and blue coloured underwear from the house of the accused which was 15 km away from the place of occurrence. A suggestion was given to this witness that he has prepared a wrong site plan and has conducted the investigation while sitting in the police station, which he denied.
20. Mohd. Shakir ( PW-7), the second Investigating Officer, stated that after the transfer of previous investigating officer, he collected the date of birth certificate of the victim showing her date of birth as 3.10.2018. Thereafter, application was given before the Court for extending the remand of the accused. Vide C.D. dated 20.11.2021, the statement of the victim and her mother-Suman was recorded by the Court under Section 164 of Cr.P.C. and he also recorded the statement of Panchayat Officer who issued the date of birth certificate. Thereafter, on 27.11.2021, on receiving the medical report from King George's Medical University, Lucknow, a supplementary report was recorded in C.D-14 dated 28.11.2021 and statement of Dr. Seema Gupta was also recorded. Thereafter, the charge sheet under Section 376 AB of IPC and Section 5/6 POCSO Act was submitted against accused-Prem Naresh which is exhibited Ka-9.
In cross examination, this witness stated that the informant did not tell him about breaking open the door and he has not seen plastic bag from where the victim was found in naked condition. This witness also denied a suggestion that he has prepared the document while sitting in the police station and has recorded false statement under Section 161 Cr.P.C.
21. Thereafter, the statement of accused under Section 313 Cr.P.C. was recorded and all incriminating evidence was put to him. Question No.3 and its reply read as under : -
**iz'u & vkius vfHk;kstu lk{kh la[;k&2 Mk0 lhek xqIrk] ftyk fpfdRlky; vkSjS;k ds c;ku lqusA ;g lk{kh ihfM+rk dk fpfdRlh; ijh{k.k djus okyh MkDVj gS rFkk bl lk{kh us i=koyh esa 'kkfey dkxt la0& 11d@1 Rk 11d@2 ihfM+rk dh iwjd fpfdRlh; vk[;k izn'kZ d&2 ,oa i=koyh esa 'kkfey dkxt la0 9d@1 yxk;r 9d@8 ihfM+rk dh fpfdRlh; vk[;k izn'kZ d&3 dks vius ys[k o gLrk{kj esa gksuk lkfcr fd;k gSA bl lEcU/k esa vkidks D;k dguk gS \ mRrj%& xyr gSA ihfM+rk ds pksV fxj tkus dh ctg ls vkbZ FkhA** In reply to the question no.11 regarding the explanation by the accused, the accused replied that he is innocent and how the victim has suffered the injuries only she knew about it. No defence evidence was led by the accused.
22. The Trial Court, thereafter, vide impugned judgment of conviction, held the appellant guilty of offences and vide order of sentence, awarded him death sentence with fine.
23. Learned counsel for the appellant has argued that the case of the prosecution is based on circumstantial evidence as it is not a case of eye witness account.
24. Learned counsel for appellant has raised the following arguments : -
(A) It is submitted that there is delay of four hours in lodging an FIR. Mithalesh-PW-1 has stated that the incident is of around 2:30 p.m. on 20.10.2021 however, the FIR has been registered at 17:53 hrs on the same date and the distance between the place of occurrence and the police station is around four km., therefore, the prosecution has failed to give any plausible explanation for the delay in giving the information to the police station.
(B) It is next argued that as per deposition of Mithalesh-PW-1 (informant), the maternal grandfather of the victim, on hearing the cries of victim, he alongwith his son Karan Singh broke open the door of the fodder room, however, the same was not corroborated by the Investigating Officer.
(C) Learned counsel further argued that even it has come in the statement of Suman-PW-3, mother of the victim that his son Karan Singh has broken the door and, therefore, both PW-1 & PW-3 are consistent that by breaking the door, they entered the fodder room. However, in the cross examination, PW-6, the Investigating Officer has stated that he had not seen any mark on the door of making any forced entry and the lock of the door was attached.
(D) Learned counsel submits that even in the FIR/ complaint, the informant has not stated regarding breaking open the door and son of the informant Karan Singh is examined as a witness.
(E) Learned counsel submits that place of incident is not proved by the prosecution and the survival (victim) was found from some other place and place of occurrence is shown in house of the neighbour just to rope in the accused being his brother-in-law.
(F) Learned counsel has next argued that PW-1 & PW-3 has stated that many people had gathered at the place of incident but statement of no independent witness was recorded, only family members of the victim have recorded their statement under Section 161 Cr.P.C. as well as Section 164 Cr.P.C..
(G) Learned counsel submits that statement of PW-3 (Suman) that about 200 people have gathered at the spot when they recovered the minor victim, is not supported by the Investigating Officer and, therefore, the version given by PW-1 & PW-3 are contradictory.
(H) Learned counsel next argued that there are contradiction in the statement of PW-1 & PW-3 regarding hearing of cries of the victim and efforts made to locate her.
(I) Learned counsel submits that in the FIR, it is stated that only after hearing the cries of the victim from a room, of abutting house of the informant, they could locate the victim whereas PW-1 in his statement has stated that he heard the cries of the victim, when he entered the house and when he entered in the room, the victim was unconscious whereas PW-3 has stated that first she heard the cries of the victim and then they could locate her.
(J) It is next argued that contradiction in the statement of both PW-1 & PW-3 shake the foundation of prosecution version regarding recovery of the child and the presence of the accused at the spot.
(K) It is further argued that as per PW-6, the Investigating Officer, he recovered the clothes of the accused at the pointing out of the accused on 22.10.2021, from the house of the accused vide a recovery memo. However, PW-1 stated that after the incident, he has handed over the accused to the police officials on the date of incident and at that time the accused was wearing green coloured shirt which was bloodstained and a trouser whereas, the recovery of a blue coloured underwear and army coloured lower was effected as per the recovery memo. It is also submitted that PW-6 stated that the accused Prem Naresh was arrested one day after the incident from near a canal by the S.H.O. whereas PW-1 & PW-3 have stated that they have handed over the accused to the police officials when they reached at spot and, therefore, the arrest of accused and the clothes worn by him creates doubt about the alleged recovery of clothes and the Investigating Officer has in fact planted the recovery by showing it from the house of the accused.
(L) It is next argued that PW-3 has stated that there were two doors in the room but PW-6, Investigating Officer has stated that there was only one wooden door of the fodder room and there was no other door. It is submitted that PW-3 being an eye witness has clearly stated that there were two doors in the fodder room where the incident has occurred and, therefore, the place of occurrence is not proved as the place where the victim was allegedly sexually assaulted.
(M) Learned counsel submits that PW-6, the Investigating Officer, stated that when he visited the place of occurrence, there was only one door which was not broken and thus PW-3 is not an eye witness and if she is an eye witness then the place of recovery of victim is not one as stated by the Investigating Officer. It is next argued that the discrepancies in the statements of eye witnesses regarding the clothes of the accused makes the case doubtful.
(N) Learned counsel has argued that PW-1-Mithalesh and PW-3- Suman deposed themselves to be an eye witness of the incident but there are discrepancies about the clothes worn by the accused-appellant.
(O) It is next argued that in the statement given under Section 164 Cr.P.C. by PW-3, the mother of the victim stated that she has seen the accused changing his clothes inside the room where the incident took place. PW-1 has stated that he has seen the accused hiding himself behind the bricks when he entered the room and thereafter the accused on seeing him, ran away. PW-1 has also stated that accused was wearing a green coloured shirt having blood stains. However, PW-3 has stated that when she noticed the accused running away from the room, he was wearing lower and vest and there is no mentioning of any blood on the same. The counsel argued that both PW-1 and PW-3 are at variance regarding the clothes worn by the accused at the time of the incident which makes the prosecution case doubtful. It is next argued that there is no eye-witness who had seen the victim being taken away by the accused or accused committing the alleged sexual assault on her.
(P) The counsel has referred to the statement of both PW-1 and PW-3 who have not stated that they had seen the victim being taken away by the accused and they are not the witnesses to the sexual assault by the accused. It is next argued that in the statement of the victim recorded under Section 164 Cr.P.C, she has not named the accused. The counsel submits that in this statement, the victim stated that she was put on a sack in the room, the door was closed. She deposed that her eyes were closed, her cheeks were scratched and hands and legs were tied. Baba assaulted her at sexual organs and used his hand to press her mouth. The counsel submits that the victim has not named the accused and therefore, his identity is not established. It is next argued that PW-1 has stated that the accused has taken away the victim by luring her to give biscuit whereas the victim stated that she was lured on the pretext of giving a toffee. The counsel submits that no wrapper either of biscuit or toffee was found by the I.O. at the spot. It is next argued that in the medico-legal-examination of Prem Naresh- accused, no injuries were found on his body. The counsel submits that both PW-1 and PW-3 have deposed that after the accused was apprehended at the spot, lot of people gathered and they gave beatings to the accused, however, in his medico legal examination, no injuries was found which belies the version of prosecution.
(Q) Learned counsel, contrary to the argument raised at point (A) that there is delay of four hours in lodging the F.I.R. further argued that the FIR is ante-time. As PW-1 has stated that after the incident, he had handed over the accused to the police on the very date of incident which occurred around 2:30 PM and FIR was registered at 5:53 PM. PW-6, the first I.O. has stated that accused Prem Naresh was arrested on the next day i.e. 21.10.2021 by the SHO from the distant place i.e. a canal. Therefore, it is argued that FIR is ante-time and the investigation was conducted in a manner to indict the appellant as an accused. It is argued that the contradiction in the statement of the witnesses as well as I.O. again raises a suspicion about the credibility of the prosecution witnesses and the appellant was kept in illegal detention by the police.
(R) The counsel has next argued that it has come in the statement of PW-2 Dr. Seema Gupta who conducted the medico-legal-examination of the victim and as she has stated that she is not sure whether the injury can only be caused due to sexual assault. It is submitted that this witness has stated that she has kept the clothes which were worn by the survivor in the bag and do not remember if there were blood staines. It is next argued that the memo which was prepared by the F.S.L. team at the time of visiting the place of occurrence is not placed on record of the trial court. It is also argued that as per the PW-1 and PW-3 the offence was committed on a plastic sack which was found at the place of incident and the victim was found lying on the sack in semi unconscious condition. However, PW-6- the I.O. has stated that when he reached the spot he had found a sack amongst other articles and had seen blood spots on the plastic sack but it was not recovered by the forensic team from the place of incident. The counsel has referred to the F.S.L. report, in which there is no mention of a plastic sack recovered from the place of incident. The counsel has thus argued that appellant has been convicted in the aid of Section 5/6 of POCSO Act though the prosecution has failed to dispel the proof of the prosecution evidence beyond doubt.
(S) Learned counsel has argued that even the F.S.L. report does not prove the commission of crime by the appellant. For a reference, F.S.L. report is reproduced as under:
"विधि विज्ञान प्रयोगशाला, उ०प्र०, आगरा संयुक्त निदेशक, विधि विज्ञान प्रयोगशाला, उ०प्र०, 15 ताज रोड, आगरा-282001 सेवा में, पुलिस अधीक्षक औरैया औरैया।
पत्रांकः 5507-DNA-312/21 अप०सं०ः516/21 राज्य बनाम- प्रेम नरेश धाराः 376AB IPC व 5/6 POCSO Act थाना- बिधूना
उपर्युक्त मामले से सम्बन्धित प्रदर्श प्रयोगशाला में दिनाँक 26/10/2021 को विशेष वाहक द्वारा प्राप्त हुये।
सील का विवरण कुल ग्याराह (नौ समुद्रित लिफाफा व एक वस्त्रावत समुद्रित बण्डल तथा एक समुद्रित थर्माकॉल बॉक्स जिन पर (DCH AURAIYA) मुद्रा लिफाफा (1) से (9) व मुद्रा थर्माकॉल बॉक्स (11) पर (Signature UPP) मुद्रा बण्डल (10) पर नमूनानुसार की छाप अक्षत थी।
प्रदर्शों का विवरण 01- वजाइनल स्वैबस्टिक । पीड़िता S.. से एक समुद्रित लिफाफा में 02- वलवल स्वैबस्टिक । पीड़िता S.. से एक समुद्रित लिफाफा में 03- एनल स्वैबस्टिक । पीड़िता S.. से एक समुद्रित लिफाफा में 04- ब्रेस्ट स्वैबस्टिक । पीड़िता S.. से एक समुद्रित लिफाफा में 05- रक्त नमूना । पीड़िता S.. से एक समुद्रित लिफाफा में 06- स्कर्ट । पीड़िता S.. से एक समुद्रित लिफाफा में 07- टॉप । पीड़िता S.. से एक समुद्रित लिफाफा में 08- प्युबिक हेयर । अभियुक्त प्रेम नरेश से एक समुद्रित लिफाफा में 09- टुकड़े नाखुन I अभियुक्त प्रेम नरेश से एक समुद्रित लिफाफा में 10- अण्डरवियर I अभियुक्त प्रेम नरेश से एक समुद्रित बण्डल में 11- लोअर I अभियुक्त प्रेम नरेश से एक समुद्रित लिफाफा में 12- रक्तनमूना I अभियुक्त प्रेम नरेश से एक समुद्रित थर्माकॉल बॉक्स में परीक्षण परीणाम प्राप्त प्रदर्शों (1) से (12) का डी०एन०ए० परीक्षण किया गया।
स्त्रोत प्रदर्श (11) (प्रेम नरेश से) पर उपस्थित बायोलाजिकल द्रव्य का स्त्रोत प्रदर्श (5) ( S...) के समान पाया गया।
(HID-STR KITS) स्त्रोत प्रदर्श (1) से (3)व (6) ( S..... से) में पुरुष विशिष्ट एलील की उपस्थिति पायी गयी परन्तु आंशिक डी०एन०ए० प्रोफाइल जनरेट होने के कारण स्त्रोत प्रदर्श (12) (प्रेम नरेश से) से मिलान के सम्बन्ध में अभिमत दिया जाना सम्भव न हो सका। (HID & Y-STR KITS) स्त्रोत प्रदर्श (4) व (7), का डी०एन०ए० प्रोफाइल स्त्रोत प्रदर्श (5) (S..... से) के समान व स्त्री मूल का पाया गया । (HID- STR KIT) स्त्रोत प्रदर्श (8) से (10) का डी०एन०ए० प्रोफाइल स्त्रोत प्रदर्श (12) ( प्रेम नरेश से) के समान व पुरूष मूल का पाया गया।। (HID&Y-STR KIT) डी०एन०ए० परीक्षण मे जैनेटिक एनालाइजर व जीन मैपर साफ्टवेयर का प्रयोग किया गया।
उक्त परीक्षण में मानक विधियाँ प्रयोग में लायी गयी।
नोटः- समस्त प्रदर्शों को परीक्षण उपरान्त एक समुद्रित बण्डल में वापस लौटाया जा रहा है।
आवश्यक कार्यवाही हेतु अग्रसारित ह० अप० ह० अप० 03/01/23 03/01/23 संयुक्त निदेशक उप निदेशक डी० एन० ए० अनुभाग विधि विज्ञान प्रयोगशाला आगरा, उ० प्र०"
(T) The counsel has argued that the articles from S.Nos.1 to 7 belong to the victim and were handed over by PW-2 to the I.O. whereas articles at S.Nos.8 to 12 belong to the accused-Prem Naresh.
(U) The counsel submits that as per the final conclusion drawn in the report, it is stated that Ex.1 to 12 were subjected to DNA examination. From the source Ex.11, which was lower worn by Prem Naresh, the source of biological fluid matched with the source at Ex.5 of the victim i.e. blood sample. The counsel submits that this is not sufficient to hold the appellant guilty of offence as from the source (Ex. 1 to 3 and 6) of the victim which are vaginal swab stick, vulval swab stick, anal swab stick and skirt, the presence of male allele was found but because of partial generation of DNA profile, it was found that it is not possible to match the same with Ex.12 i.e. blood sample of accused- Prem Naresh. The counsel submits that in view of this FSL report, it cannot be held that the appellant has committed the offence.
(V) Lastly, learned counsel has argued that the legal-aid-counsel appointed by the trial court to defend the accused has not properly conducted the trial as neither the material questions were put to the prosecution witnesses nor proper reply was given to the questions put while recording the statement under Section 313 Cr.P.C. and in order to prove innocence, the defence counsel failed to examine defence witness about his plea of alibi.
25. In reply, the learned AGA assisted by the Amicus Curiae/ Legal-Aid-Counsel appointed by the court on behalf of the victim has argued that the victim was subjected to aggravated penetrative sexual assault.
(B) The counsel has referred to MLC Report of the victim which is proved by Dr. Seema Gupta wherein, she has stated that on the sexual organs of the victim, fresh blood was seen and there was long tear from the vagina upto anus of the victim, as reflected in the sketch attached on the MLC Report.
(C) It is argued that doctor has clearly opined that the victim who is aged about three years at the time of incident was sexually assaulted and therefore, the medical evidence proved the charge against the appellant.
(D) It is next argued that during the cross-examination, PW-2 has clearly stated that if the victim had fallen on sharp end article, she may suffer injury on her sexual organs but the injury on the vagina and the anus cannot be caused simultaneously.
(E) The counsel submits that it is a case where PW-1 and PW-3 have witnessed the occurrence and they have recovered the child from the accused, who was also found present at the spot where the occurrence has taken place.
(F) The counsel submits that both the witnesses PW-1 and PW-3 are consistent in making statement that when they entered fodder room the victim was lying on plastic bag in nude condition and told that the accused on pretext of giving biscuit took her inside the fodder room and committed the offence.
(G) It is next argued that immediately after the incident, the statement of the victim as well as PW-3, the mother of the victim, was recorded by the police and the Magistrate. The statement was duly proved by PW-3. Learned AGA has submitted that in both the statements, the involvement of the appellant is duly proved.
(H) It is argued that the statement under Section 164 Cr.P.C. was recorded in accordance with law and even the victim has stated that the manner in which, the offence was committed and she called her Baba (grandfather). It is next argued that after the arrest of the accused, he himself pointed out the place from where, the blue colour underwear and army coloured lower were kept concealed in a plastic bag and were recovered.
(I) Learned counsel submits that even at the first instance when the I.O. recorded the brief history of the incident, in which the victim has stated that Bau has taken her to the fodder room and therefore, neither there is any improvement nor there is any doubt about the first version given to the doctor as well as the police.
(J) It is also argued that the victim has identified the accused as maternal uncle of one Himanshu who is son of Shiv Prem, a next door neighbour of the informant-PW-1. The accused is brother-in-law (sala) of Shiv Prem and therefore, his presence in the house is duly proved.
(K) Learned AGA has next argued that except giving a suggestion to PW-1- informant as well as to PW-3- mother of the victim that on account of strained relation with Shiv Prem, the accused has been falsely implicated, no evidence has been led to prove to the contrary. Learned AGA has referred to the earlier part of the cross-examination of both these witnesses where they have stated that they are having cordial relationship with Shiv Prem and both the families have visiting terms with each other. The counsel further submitted that no such suggestion was given to PW-6 and PW-7 that the accused has been falsely implicated. It is next argued that F.S.L. report duly proved that the DNA profile of the accused matched with the blood sample of the victim (L) The counsel submits that if the F.S.L. report regarding the DNA examination is read in entirety, it proves the commission of offence. The counsel submits that as per the DNA report, Ex.4 and 7 which is breast swab stick, top of the victim matched with her blood sample and similarly from Ex.8 to 10, the pubic hair, pieces of nails and underwear matched with the blood sample of Prem Naresh at Ex.12 and therefore, the commission of offence by the accused is duly proved.
26. At this stage, the counsel referred to some relevant judgments of Supreme Court of India on scientific investigation of DNA.
27. In Dharam Deo Yadav vs. State of U.P., 2014 (3) Apex Court Judgements (SC) 125, it is observed as under :
"33. We are in this case concerned with the acceptability of the DNA report, the author of which (PW21) was the Chief of DNA Printing Lab, CDFD, Hyderabad. The qualifications or expertise of PW21 was never in doubt. The method he adopted for DNA testing was STR analysis. Post-mortem examination of the body remains (skeleton) of Diana was conducted by Dr. C.B. Tripathi, Professor and Head of Department of Forensic Medical I.M.S., B.H.U., Varanasi. For DNA analysis, one femur and one humerus bones were preserved so as to compare with blood samples of Allen Jack Routley. In cases where skeleton is left, the bones and teeth make a very important source of DNA. Teeth, as often noticed is an excellent source of DNA, as it forms a natural barrier against exogenous DNA contamination and are resistant to environmental assaults. The blood sample of the father of Diana was taken in accordance with the set up precept and procedure for DNA isolation test and the same was sent along with taken out femur and humerus bones of recovered skeleton to the Centre for D.N.A. Fingerprinting and Diagnostics (CDFD), Ministry of Science and Technology, Government of India, Hyderabad. PW21, as already indicated, conducted the DNA Isolation test on the basis of samples of blood of Routley and femur and humerus bones of skeleton and submitted his report dated 28.10.1998. DNA Fingerprinting analysis was carried out by STR analysis and on comparison of STR profile of Routley. When DNA profile of sample found at the scene of crime matches with DNA profile of the father, it can be concluded that both the samples are biologically the same.
34. 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.
28. Similar View is taken in Mukesh and Anr. Vs. State of NCT of Delhi, 2017 AIR (SC) 2161. The operative portion of the order read as under :
"443. 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 blue print for 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.
444. We may usefully refer to Advanced Law Lexicon, 3rd Edition Reprint 2009 by P. Ramanatha Aiyar which explains DNA as under:-
"DNA.- De-oxy-ribonucleic 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)
445. 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.
446. Observing that DNA is scientifically accurate and exact science and that the trial court was not justified in rejecting DNA report, in Santosh Kumar Singh v. State through CBI (2010) 9 SCC 747, the Court held as under:-
"65. We now come to the circumstance with regard to the comparison of the semen stains with the blood taken from the appellant. The trial court had found against the prosecution on this aspect. In this connection, we must emphasise that the court cannot substitute its own opinion for that of an expert, more particularly in a science such as DNA profiling which is a recent development.
66. Dr. Lalji Singh in his examination-in-chief deposed that he had been involved with the DNA technology ever since the year 1974 and he had returned to India from the UK in 1987 and joined CCMB, Hyderabad and had developed indigenous methods and techniques for DNA finger printing which were now being used in this country. We also see that the expertise and experience of Dr. Lalji Singh in his field has been recognised by this Court in Kamalanantha v. State of T.N. (2005) 5 SCC 194 We further notice that CW 1 Dr. G.V. Rao was a scientist of equal repute and he had in fact conducted the tests under the supervision of Dr. Lalji Singh. It was not even disputed before us during the course of arguments that these two scientists were persons of eminence and that the laboratory in question was also held in the highest esteem in India.
67. The statements of Dr. Lalji Singh and Dr. G.V. Rao reveal that the samples had been tested as per the procedure developed by the laboratory, that the samples were sufficient for the purposes of comparison and that there was no possibility of the samples having been contaminated or tampered with. The two scientists gave very comprehensive statements supported by documents that DNA of the semen stains on the swabs and slides and the underwear of the deceased and the blood samples of the appellant was from a single source and that source was the appellant.
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 v. 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 Kamti Devi v. Poshi Ram (2001) 5 SCC 311. In arriving 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." [emphasis added].
447. .............xxx................
448. DNA profile generated from the blood samples of accused Ram Singh matched with the DNA profile generated from the rectal swab of the victim. Blood as well as human spermatozoa was detected in the underwear of the accused Ram Singh (dead) and DNA profile generated therefrom was found to be female in origin, consistent with that of the victim. Likewise, the DNA profile generated from the breast swab of the victim was found consistent with the DNA profile of the accused Akshay."
29. In Ravi s/o of Ashok Ghumare Vs. State of Maharashtra, 2019 AIR (SC) 5170, the Supreme Court has observed as under :
"34. The unshakable scientific evidence which nails the appellant from all sides, is sought to be impeached on the premise that the method of DNA analysis "Y-STR" followed in the instant case is unreliable. It is suggested that the said method does not accurately identify the accused as the perpetrator; and unlike other methods say autosomal-STR analysis, it cannot distinguish between male members in the same lineage.
35. We are, however, not swayed by the submission. The globally acknowledged medical literature coupled with the statement of P.W.11 - Assistant Director, Forensic Science Laboratory leaves nothing mootable that in cases of sexual assualt, DNA of the victim and the perpetrator are often mixed. Traditional DNA analysis techniques like "autosomal- STR" are not possible in such cases. Y-STR method provides a unique way of isolating only the male DNA by comparing the Y- Chromosome which is found only in males. It is no longer a matter of scientific debate that Y-STR screening is manifestly useful for corroboration in sexual assault cases and it can be well used as excalpatory evidence and is extensively relied upon in various jurisdictions throughout the world. 1&2. Science and Researches have emphatically established that chances of degradation of the `Loci' in samples are lesser by this method and it can be more effective than other traditional methods of DNA analysis. Although Y-STR does not distinguish between the males of same lineage, it can, nevertheless, may be used as a strong circumstantial evidence to support the prosecution case. Y-STR techniques of DNA analysis are both regularly used in various jurisdictions for identification of offender in cases of sexual assault and also as a method to identify suspects in unsolved cases. Considering the perfect match of the samples and there being nothing to discredit the 1"Y-STR analysis for detection and objective confirmation of child sexual abuse", authored by Frederick C. Delfin - Bernadette J. Madrid - Merle P. Tan - Maria Corazon A. De Ungria.
2"Forensic DNA Evidence: Science and the Law", authored by Justice Ming W. Chin, Michael Chamberlain, A,y Roja, Lance Gima.
DNA analysis process, the probative value of the forensic report as well as the statement of P.W.11 are very high. Still further, it is not the case of the appellant that crime was committed by some other close relative of him. Importantly, no other person was found present in the house except the appellant.
36. There is thus overwhelming eye-witness account, circumstantial evidence, medical evidence and DNA analysis on record which conclusively proves that it is the appellant and he alone, who is guilty of committing the horrendous crime in this case. We, therefore, unhesitatingly uphold the conviction of the appellant."
30. In Manoj and others vs. State of Madhya Pradesh, (2022) SCC Online SC 677, the Supreme Court has observed as under :
"138. During the hearing, an article published by the Central Forensic Science Laboratory, Kolkata40 was relied upon. The relevant extracts of the article are reproduced below:
"Deoxyribonucleic acid (DNA} is genetic material present in the nuclei of cells of living organisms. An average human body is composed of about 100 trillion of cells. DNA is present in the nucleus of cell as double helix, supercoiled to form chromosomes along with Intercalated proteins. Twenty- three pairs of chromosomes present In each nucleated cells and an individual Inherits 23 chromosomes from mother and 23 from father transmitted through the ova and sperm respectively. At the time of each cell division, chromosomes replicate and one set goes to each daughter cell. All Information about Internal organisation, physical characteristics, and physiological functions of the body is encoded in DNA molecules in a language (sequence) of alphabets of four nucleotides or bases: Adenine (A), Guanine (G}, Thymine (T} and Cytosine (C) along with sugar- phosphate backbone. A human haploid cell contains 3 billion bases approx. All cells of the body have exactly same DNA but it varies from individual to Individual in the sequence of nucleotides. Mitochondrial DNA (mtDNA} found in large number of copies in the mitochondria is circular, double stranded, 16,569 base pair in length and shows maternal inheritance. It is particularly useful in the study of people related through the maternal line. Also being in large number of copies than nuclear DNA, it can be used in the analysis of degraded samples. Similarly, the Y chromosome shows paternal inheritance and is employed to trace the male lineage and resolve DNA from males in sexual assault mixtures. Only 0.1 % of DNA (about 3 million bases} differs from one person to another. Forensic DNA Scientists analyse only few variable regions to generate a DNA profile of an individual to compare with biological clue materials or control samples.
...... DNA Profiling Methodology DNA profile is generated from the body fluids, stains, and other biological specimen recovered from evidence and the results are compared with the results obtained from reference samples. Thus, a link among victim(s) and/or suspect(s) with one another or with crime scene can be established. DNA Profiling Is a complex process of analyses of some highly variable regions of DNA. The variable areas of DNA are termed Genetic Markers. The current genetic markers of choice for forensic purposes are Short Tandem Repeats (STRs). Analysis of a set of 15 STRs employing Automated DNA Sequencer gives a DNA Profile unique to an Individual (except monozygotic twin). Similarly, STRs present on Y chromosome (Y- STR) can also be used in sexual assault cases or determining paternal lineage. In cases of sexual assaults, Y-STRs are helpful in detection of male profile even in the presence of high level of female portion or in case of azoo11permic or vasectomized" male. Cases In which DNA had undergone environmental stress and biochemical degradation, min lSTRs can be used for over routine STR because of shorter amplicon size.
DNA Profiling is a complicated process and each sequential step involved in generating a profile can vary depending on the facilities available In the laboratory. The analysis principles, however, remain similar, which include:
1. isolation, purification & quantitation of DNA
2. amplification of selected genetic markers
3. visualising the fragments and genotyping
4. statistical analysis & interpretation.
In DNA analysis, variations in Hypervariable Region I & II (HVR I & II) are detected by sequencing and comparing results with control samples:....
Statistical Analysis A typical DNA case involves comparison of evidence samples, such as semen from a rape, and known or reference samples, such as a blood sample from a suspect. Generally, there are three possible outcomes of profile comparison:
1) Match: If the DNA profiles obtained from the two samples are indistinguishable, they are said to have matched.
2) Exclusion: If the comparison of profiles shows differences, it can only be explained by the two samples originating from different sources.
3) Inconclusive: The data does not support a conclusion Of the three possible outcomes, only the "match" between samples needs to be supported by statistical calculation. Statistics attempt to provide meaning to the match. The match statistics are usually provided as an estimate of the Random Match Probability (RMP) or in other words, the frequency of the particular DNA profile in a population.
In case of paternity/maternity testing, exclusion at more than two loci is considered exclusion. An allowance of 1 or 2 loci possible mutations should be taken Into consideration while reporting a match. Paternity of Maternity Indices and Likelihood Ratios are calculated further to support the match.
Collection and Preservation of Evidence If DNA evidence is not properly documented, collected, packaged, and preserved, It will not meet the legal and scientific requirements for admissibility in. a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victim(s), suspect(s), scene of crime for solving the case should be Identified, preserved, packed and sent for DNA Profiling."
139. In an earlier judgment, R v Dohoney & Adams the UK Court of Appeal laid down the following guidelines concerning the procedure for introducing DNA evidence in trials: (1) the scientist should adduce the evidence of the DNA comparisons together with his calculations of the random occurrence ratio; (2) whenever such evidence is to be adduced, the Crown (prosecution) should serve upon the defence details as to how the calculations have been carried out, which are sufficient for the defence to scrutinise the basis of the calculations; (3) the Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been based.
140. The Law Commission of India in its report, observed as follows:
"DNA evidence involves comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not 'match', then this will prove a lack of identity between the known person and the person from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples, an approximate number reflecting how often a similar DNA "profile" or "fingerprint" is found. It may be, for example, that the relevant profile is found in 1 person in every 100,000: This is described as the 'random occurrence ratio' (Phipson 1999).
Thus, DNA may be more useful for purposes of investigation but not for raising any presumption of identity in a court of law."
31. The Trial Court framed the following legal points for adjudication :
(a) Whether the accused committed the aggravated penetrative assault on the victim by luring her to give biscuits?
(b) Whether from the statement of informant (PW-1), PW-3 and PW-4, the commission of offence is proved ?
(c) Effect of non examination of independent witnesses.
(d) The description and place of occurrence in the F.I.R.
(e) The DNA result regarding commission of offence with the victim.
(f) The injuries sustained by the victim on her body.
(g) Determination of age of the victim and
(h) statement of accused under section 313 Cr.P.C. and the defence witness, if any.
32. After hearing the counsel for the parties and on re-appreciation of the entire evidence on record, this Court finds limited scope of interference in the present appeal for the following reason :
(I) At point (a), the credibility of the prosecution witness could not be shattered despite lengthy cross-examination.
Informant-Mithalesh (PW-1), who is the maternal grand father of victim, stated that on 20.10.2021, when his other grandson and daughter came from the school and enquired about the victim, they searched for her. After about one and a half hours, they heard the cries of the victim from the abutting house. By breaking open the door, when they entered the fodder room, they saw that the victim was lying in naked condition on a plastic sack and accused-Ram Naresh was also sitting hiding himself behind the heap of bricks. On seeing them, the accused ran away. The condition of the victim was very bad and she was bleeding from her sexual organs. This witness stated that the victim knew the accused as maternal uncle (Mama) of Himanshu. Himanshu is the son of Shiv Prem whose house abuts the house of informant (PW-1) and accused is the brother-in-law of Shiv Prem.
Similar is the statement of Suman (PW-3), the mother of the deceased, who had also seen the victim when she along with PW-1 and Karan Singh broke open the door. Both PW-1 and PW-3 have stated that when they asked from the victim, she told that accused Prem Naresh, on the pretext of giving biscuits, took her to the fodder room and committed the offence by tying her hands and closing her eyes. Both the witnesses have further stated about the medico legal examination of the victim from the Government Hospital, Auraiya where PW-2 conducted the medico-legal-examination of the victim and referred her to Government Hospital, Saifai. From there, she was referred to S.G.P.G.I. Lucknow. It has also come in the statement of both the prosecution witnesses that the victim has undergone one operation and she is still under treatment on the date of their examination before the Court i.e. about one year after the date of incident and as per the opinion of the Doctor, the victim has still to undergo one more operation. In cross examination, only suggestion given to PW-1 and PW-3 was that due to their enmity or strained relationship with Shiv Prem, accused has been falsely implicated though in the earlier part of cross examination, both PW-1 and PW-3 have clearly stated that they were having cordial relationship with family of Shiv Prem and they have visiting terms with each other.
Therefore, the prosecution has been able to prove by leading cogent and corroborating evidence that the victim was subjected to aggravated penetrative assault and thus finding recorded by the Trial Court is upheld.
(II) At point (b), on a careful perusal of the statement of PW-1, PW-3 & PW-4 and on re-appreciation of the entire evidence, it is proved that PW-1 stated that at about 2.00 PM on 20.10.2021 when his other grandson and granddaughter came back from the school and enquired about the victim, they searched for the victim for about 1 & ½ hours. They heard the cries from the abutting house. When PW-1 along with PW-3 broke open the door and went to the fodder room, the victim was found lying in naked condition on a plastic sack and accused-Prem Naresh was also sitting there hiding himself behind a heap of bricks and on seeing them, he ran away. The victim was bleeding from her sexual organs and was not in senses.
PW-1 has also stated that his abutting house is of Shiv Prem who is brother-in-law (jija of the accused). He frequently visits his house. Therefore, the victim identified him as maternal uncle (mama) of Himanshu who is son of Shiv Prem. The victim informed him that the accused has enticed her away by luring her to give biscuits and by taking her in the fodder room, he committed the offence. This witness also stated that the condition of the victim was very bad and she was taken to Government Hospital, Auraiya, from where the Doctor after conducting medico legal examination, referred her to Government Hospital, Saifai. From there, she was referred to S.G.P.G.I. Lucknow. One operation of the victim was conducted and the the victim is still under treatment and one more operation is required to be done.
PW-3 duly supported the version of PW-1 regarding identification of accused; the manner in which the accused committed the offence and about recovery of the victim from the fodder room as well as treatment of her daughter.
PW-3 also deposed that her statement under Section 164 Cr.P.C. along with the victim was recorded in which she has given the same version as deposed in the Court.
PW-4, the victim, stated that maternal uncle of Himanshu gave her toffee, caught hold of her and by closing her eyes, caused injuries on her sexual organs. She has also stated the manner in which the accused had committed the crime by throwing her on a sack after closing the door.
Thus, the informant and maternal grandfather of victim, PW-3, the mother of the victim and PW-4, the victim herself, have clearly given the description of the incident naming Prem Naresh as the accused person.
Similarly, Dr. Seema Gupta (PW-2), who conducted the medico-legal-examination of the victim, has also given the complete description of the injuries sustained by the victim aged about three years. She also stated that fresh bleeding was present in the sexual organs of the victim. In cross examination, she has stated that if the victim had a fall over a pointed article, she could only suffer injury on her sexual organs and not on her vagina and anus simultaneously.
Constable Praveen Kumar (PW-5) deposed about the registration of the Chick F.I.R. as well as G.D. No.44.
Rajesh Kumar Singh (PW-6), the first Investigating Officer, has also given description of all the recoveries effected by the Forensic Team who visited the place of occurrence and recovered the articles which included hairs. This witness also stated that accused was arrested by the S.H.O. from near a canal on the next date and the medico-legal-examination of the victim was conducted and, thereafter, the articles handed over by the Forensic Science team as well as PW-2 were sent for DNA examination to Forensic Science Laboratory, Agra.
In cross examination, this witness remained consistent about the investigation conducted by him except certain minor discrepancies regarding deposition of PW-1 and PW-3.
Mohd. Shakir (PW-7), the second Investigating Officer, also deposed about the further investigation, collecting the birth certificate of the victim, recording of statement under Section 164 of Cr.P.C. of the victim and her mother (PW-3), recording of statements of other witnesses under Section 161 of Cr.P.C. and collecting the report from K.G.M.U., Lucknow. This witness stated that he recorded the statement of PW-2, Dr. Seema Gupta, by way of supplementary report and the same was submitted before the Court. The defence has argued that no independent witness was examined and there are discrepancies in the statements of the prosecution witnesses. After careful perusal of the statements of the witnesses, going through the statement of the victim and her statement under Section 164 Cr.P.C., the prosecution has duly proved the identity of the accused, place of occurrence and, therefore, the finding of the Trial Court is upheld.
(III) Regarding point (c), i.e. non examination of independent witness, though it is argued on behalf of the appellant that it has come in the statement of PW-3 that many villagers gathered at the spot when they recovered the victim but no independent witness was examined. However, it is well settled principle of law that if the informant and other eye-witnesses are consistent regarding the manner in which the offence is committed, the identification of the accused as well as place of occurrence which is corroborated by the medical evidence, mere non examination of any independent witness is not fatal to prosecution case especially where the charge is under Section 376 AB of IPC and Section 5/6 of POCSO Act. Therefore, the finding recorded by the Trial Court that non examination of independent witness is not fatal to the prosecution case is upheld.
(IV) Regarding point (d), the prosecution has proved the description of identification of the place of occurrence which is a house just next to the house of the informant (PW-1). A recovery was effected from inside a fodder room meant for the cattles and it has come in the statement of PW-1 to PW-3 that they heard the cries of the victim and by breaking open the door, they entered the room and found that the victim was lying on a plastic sack in naked and semi unconscious condition and she was bleeding from her sexual organs. The accused was also found in the room hiding behind a heap of bricks and on seeing the prosecution witnesses, he succeeded in running away. Therefore, the place of occurrence is duly proved by the prosecution and finding of trial court in this regard is upheld.
(V) Regarding point (e) i.e. DNA result of the victim regarding commission of offence- The counsel for the appellant has argued that it has come in the DNA report that the same is not conclusive as partial DNA profile was generated and, therefore, it was not possible to give opinion regarding matching the same with source Ex.12 i.e. the blood sample of accused-Prem Naresh. However, a careful perusal of the entire report leads to a conclusion that the same supports the prosecution version. Firstly, because in source (Ex.1, 2, 3 & 6) which are the vaginal swab stick, vulval swab stick, anal swab stick and blood sample of victim-S, presence of male allele was found which proved that she was subjected to aggravated penetrative assault. Secondly, Ex.4, breast swab stick, and Ex.7, the top/shirt belonging to the victim, were found to be matching with her blood sample and were of a female. The most important part of DNA report is that the source Ex.8 to 10 which are pubic hair, pieces of nail and underwear belonging to accused Prem Naresh matched with the DNA profile source of Ex.12 which is the blood sample of Prem Naresh and a definite opinion is given that the same matched and is of a male person. Thus, it is proved from the statement of PW-6, the first Investigating Officer, that when the Field Unit of Forensic Science Lab collected the articles, human hairs were also recovered which as per the source Ex.8 are pubic hair of accused and it matched with his blood sample Ex.12. Therefore, DNA report also proves that the accused has committed the offence with the victim.
(VI) Regarding point (f), the injury sustained by the victim also proved the commission of offence. PW-2, Dr. Seema Gupta, has clearly deposed that when she medico legally examined the victim, she found that the victim complained of vaginal pain and bleeding with vaginal tear of size 3 x 3 cm at 6' O Clock position and there was tear from vagina up to anus with bleeding and it was a case of sexual assault. This witness further stated that clotted blood and fresh blood were present in perineal region. PW-2 reported as under :
"Injury present at vagina valva anus vaginal tear present with anal sphinter tear bleeding present from anus and vagina. This may be due to sexual assault."
"A case of sexual assault vaginal and anus tear, bleeding present. This may be due to sexual assault."
During cross examination, this witness was asked whether the victim suffered injury if she fell on peg meant for tying cattles, to which PW-2 has clearly stated that the victim could only suffer injury on her vagina and not simultaneously both on vagina and anus. Thus, the nature of injury sustained by the victim also proves that the accused has committed the offence of penetrative sexual assault on her. Accordingly, the finding recorded by the Trial Court is upheld.
(VII) Regarding point (g), the determination of age of the victim, it is proved by PW-6 that the date of birth of the victim was 3.10.2018 and on the date of incident i.e. 20.10.2021 she was aged about 3 years and 17 days and, therefore, the Trial Court has rightly recorded that the age of the victim was 3 years and 17 days. The Trial Court has also recorded a finding that both the Investigating Officers, PW-6 & PW-7, have conducted the investigation in a proper manner leading to a conclusion that the accused has committed the offence.
(VIII) Regarding point (h), in the statement recorded under Section 313 Cr.P.C., all the incriminating evidence was put to the accused.
Question No.1 relates to enticing away the victim aged about three years on allurement of giving biscuits and committing penetrative sexual assault, the accused simply stated that it is wrong and he has not committed the rape.
Similar is the reply with regard to question No.2 regarding search and recovery of the victim from the fodder room where the accused replied that he has not committed the offence.
Question No.3 relates to putting up the entire medical evidence as per the statement of PW-2 and the Medico Legal Report. The accused stated that the same is incorrect and the victim suffered the injury because of fall.
Under question No.4, the accused was put to the statement of the victim as well as her mother recorded under Section 164 Cr.P.C. In reply, the accused stated that he has not taken away the victim and has not given any biscuit to her.
Under question No.5, the statement of the victim was put to the accused, to which, he replied that the victim was tutored.
Question No.6 was put regarding registration of the F.I.R. on the basis of the written complaint by the informant. In reply, the accused stated that the prosecution has wrongly put up the facts.
Under question No.7, statement of the first Investigating Officer (PW-6) and the documents prepared by him were put to the accused. In reply, it is stated that the investigation was wrongly done and the place of occurrence was also wrongly shown.
Under question No.8, statement of PW-7, the second Investigating Officer, as well as the documents prepared by him were put to the accused and in reply, the accused stated that it is incorrect, the investigation is defective and no recovery was effected from the spot.
Question No.9 was put regarding F.S.L. report from Agra. In reply, the accused stated that the same is incorrect and he did not want to comment anything.
Question No.10 was put whether accused want to lead any defence evidence to which, he replied 'yes'.
On question No.11, it was asked whether the accused want to say anything, to which, he replied that he is innocent and how the victim has suffered injuries on her body only she can tell.
33. In view of the reply given by accused to all the incriminating evidence led against him and non examination of any defence witness to prove his innocence or to prove that he was not present at the spot and has not committed the offence, the Trial Court has rightly recorded the finding holding the accused guilty of offence. Therefore, the finding recorded by the Trial Court holding the appellant guilty of offence punishable under Section 376 AB of IPC and Section 5/6 of Prevention of Child from Sexual Offences Act, 2012 as amended in 2019 are upheld.
34. However, the Court finds merit in the argument raised by the counsel for the appellant that it is not a 'rarest of the rare' case where death penalty could be awarded and the Trial Court has not recorded any mitigating circumstances which require that only death penalty should be awarded to the accused.
35. In recent judgment the Supreme Court in Navas alias Mulanavas vs. State of Kerala, 2024 SCC OnLine SC 315 has considered many cases where the Court has commuted death sentence to life imprisonment. The operation part of the order read as under :
"29. In Haru Ghosh v. State of West Bengal, (2009) 15 SCC 551 which involved the murder of two individuals and the attempt to murder the third by the accused who was out on bail in another case, after conviction, this Court while commuting the death penalty after taking into account the aggravating and mitigating circumstances imposed a sentence of 35 (thirty five) years of actual jail sentence without remission. It was noted that commission of the offence was not premeditated since he did not come armed and that the accused was the only bread earner for his family which included two minor children.
30. In Mulla & Another v. State of U.P., (2010) 3 SCC 508 the accused/appellant, along with other co-accused, was found guilty of murdering five persons, including one woman. This Court confirmed the conviction but modified the sentence. This Court stressed on the fact that socioeconomic factors also constitute a mitigating factor and must be taken into consideration as in the case the appellants belonged to extremely poor background which prompted them to commit the act. The sentence was reduced from death to life imprisonment for full life, subject to any remission by the Government for good reasons.
31. In Ramraj v. State of Chhattisgarh, (2010) 1 SCC 573 which involved the murder of his wife, this Court imposed a sentence of 20 (twenty) years including remissions.
32. In Ramnaresh and Others vs. State of Chhattisgarh., (2012) 4 SCC 257 the convicts were sentenced to death by the lower court, with the High Court confirming the sentence, on finding them guilty of raping and murdering an innocent woman while she was alone in her house. This Court confirmed the conviction but found the case did not fall under the 'rarest of rare' category for awarding death sentence. Ultimately, after setting out the well-established principles and on consideration of the aggravating and mitigating circumstances, this Court, while commuting the sentence from death imposed a sentence of life imprisonment of 21 (twenty one) years.
33. Neel Kumar v. State of Haryana, (2012) 5 SCC 766 was a case where the accused committed murder of his own four-year old daughter. This Court, after considering the nature of offence, age, relationship and gravity of injuries caused, awarded the accused 30 (thirty) years in jail without remissions.
34. In Sandeep v. State of Uttar Pradesh, (2012) 6 SCC 107 which involved the murder of paramour and the unborn child (foetus), this Court, while considering the facts and circumstances awarded a period of 30 (thirty) years in jail without remission.
35. In Shankar Kisanrao Khade vs State of Maharashtra, (2013) 5 SCC 546, the accused was convicted for raping and murdering a minor girl aged eleven years and was sentenced to death for conviction under S. 302 of IPC, life imprisonment under S. 376, seven years RI under S. 366-A and five years RI under S. 363 r/w S. 34. This Court confirmed the conviction but modified the death sentence to life imprisonment for natural life and all the sentences to run consecutively.
36. Sahib Hussain v. State of Rajasthan, (2013) 9 SCC 778, concerned killing of five persons including three children. This Court, taking note of the fact that the guilt was established by way of circumstantial evidence and the fact that the High Court had already imposed a sentence of 20 (twenty) years without remission, did not interfere with the judgment of the High Court.
37. In Gurvail Singh & Anr. v. State of Punjab, (2013) 2 SCC 713 which involved the murder of four persons, this Court weighed the mitigating factors i.e., age of the accused and the probability of reformation and rehabilitation, and aggravating factors i.e., the number of deceased, the nature of injuries and the totality of facts and circumstances directed that the imprisonment would be for a period of 30 (thirty) years without remission.
38. In Alber Oraon v. State of Jharkhand, (2014) 12 SCC 306 which involved the murder by the accused of his livein partner and the two children of the partner, this Court, even though it found the murder to be brutal, grotesque, diabolical and revolting, applied the proportionality principle and imposed a sentence of 30 (thirty) years over and above the period already undergone. It was ordered that there would be no remission for a period of 30 (thirty) years.
39. In Rajkumar v. State of Madhya Pradesh, (2014) 5 SCC 353, which involved the rape and murder of helpless and defenceless minor girl, this Court commuting the death penalty imposed a sentence of 35 (thirty five) years in jail without remission.
40. In Selvam v. State, (2014) 12 SCC 274, the accused was found guilty of rape and murder of nine year old girl. This Court imposed a sentence of imprisonment for a period of 30 (thirty) years without any remission, considering the diabolic manner in which the offence has been committed against the child.
41. In Birju v. State of Madhya Pradesh, (2014) 3 SCC 421, the accused was involved in the murder of a one-yearold child. This Court noted that various criminal cases were pending against the accused but stated that it cannot be used as an aggravating factor as the accused wasn't convicted in those cases. While commuting the death penalty, this Court imposed a sentence of rigorous imprisonment for a period of 20 (twenty) years over and above the period undergone without remission, since he would be a menace to the society if given any lenient sentence.
42. In Tattu Lodhi v. State of Madhya Pradesh, (2016) 9 SCC 675 this Court was dealing with an appeal preferred by the accused who was sentenced to death after he was found guilty of committing murder of a minor girl and for kidnapping and attempt to rape after destruction of evidence. This Court reduced the sentence from death to life imprisonment for a minimum 25 (twenty five) years as it noted that there exists a possibility of the accused committing similar offence if freed after fourteen years. This Court also opined that the special category sentence developed in Swamy Shradhanand (supra) serves a laudable purpose which takes care of genuine concerns of the society and helps the accused get rid of death penalty.
43. Vijay Kumar v. State of Jammu & Kashmir, (2019) 12 SCC 791 was a case where the accused was found guilty of murder of three minor children of the sister-in-law of the accused. This Court, taking note of the fact that the accused was not a previous convict or a professional killer and the motive for which the offence was committed, namely, the grievance that the sister-in-law's family was not doing enough to solve the matrimonial problem of the accused, imposed a sentence of life imprisonment till natural death of the accused without remission.
44. In Parsuram v. State of Madhya Pradesh, (2019) 8 SCC 382, the accused had raped and murdered his own student. The Trial Court sentenced the accused to death which was affirmed by the High Court. This Court took into consideration the mitigating factors i.e., that the accused was twenty two years old when he committed the act and the fact that there exists a possibility of reformation and the aggravating factors i.e., that the accused abused the trust of the family of the victim. After complete consideration and reference to some precedents, this Court imposed a sentence of thirty years without any remission.
45. In Nand Kishore v. State of Madhya Pradesh, (2019) 16 SCC 278, the accused was sentenced to death by the Trial Court and the High Court for committing rape and murder of minor girl aged about eight years old. This Court noted the mitigating factors i.e., age of the accused at the time of committing the act [50 years] and possibility of reformation and imposed a sentence of imprisonment for a period of 25 (twenty five) years without remission.
46. Swapan Kumar Jha v. State of Jharkhand and Another, (2019) 13 SCC 579 was a case relating to abduction of deceased for ransom and thereafter murder by the accused. This Court took into consideration the mitigating factors i.e., young age of the accused, possibility of reformation and the convict not being a menace to society. On the other side of the weighing scale, was the fact that the accused had betrayed the trust of the deceased who was his first cousin and the fact that the act was premeditated. This Court modified the death sentence to one of imprisonment for a period of 25 (twenty five) years with remissions.
47. Raju Jagdish Paswan v. State of Maharashtra, (2019) 16 SCC 380 was a case where the accused was convicted for the rape and murder of minor girl aged about nine years and sentenced to death by the trial court which was affirmed by the High Court. This Court noted the mitigating factors i.e., murder was not preplanned, young age of the accused, no evidence to show that the accused is a continuing threat to society and the aggravating factors i.e., the nature of the crime and the interest of society, if petitioner is let out after fourteen years, imposed a sentence of life imprisonment for 30 (thirty years) without remission.
48. In X v. State of Maharashtra, (2019) 7 SCC 1 the accused was sentenced to death by this Court on his conviction for committing rape and murder of two minor girls who lived near his house. However, in review, the question placed before the Court was whether postconviction mental illness be a mitigating factor. This Court answered it in the affirmative but cautioned that in only extreme cases of mental illness can this factor be taken into consideration. The Court reduced the sentence from death to life imprisonment for the remainder of his life as he still poses as a threat to society.
49. In Irappa Siddappa Murgannavar v. State of Karnataka, (2022) 2 SCC 801, this Court affirmed conviction of the accused, inter alia, under S. 302 and 376 but modified the sentence from death to life imprisonment for minimum 30 (thirty years). This Court stated that mitigating factors such as young age of the accused, no criminal antecedents, act not being pre-planned, socioeconomic background of the accused and the fact that conduct of the accused inside jail was 'satisfactory' concluded that sufficient mitigating circumstances exists to commute the death sentence.
50. In Shiva Kumar v. State of Karnataka, (2023) 9 SCC 817, this Court opined that the facts of the case shocked the conscience of the Court. The accused was found guilty of rape and murder of a twenty eight year old married woman who was returning from her workplace. Despite noting that the case did not fall under the 'rarest of rare' category, the Court stated that while considering the possibility of reformation of the accused, Courts held that showing undue leniency in such a brutal case will adversely affect the public confidence in the efficacy of the legal system. It concluded that a fixed term of 30 (thirty years) should be imposed.
51. In Manoj and Others v. State of Madhya Pradesh, (2023) 2 SCC 353, the three accused were sentenced to death by the lower court and confirmed by the High Court on their conviction under Section 302 for committing murder, during the course of robbery, of three women. This Court, while modifying the sentence from death to life imprisonment for a minimum 25 (twenty five) years, took into consideration the non-exhaustive list of mitigating and aggravating factors discussed in Bachan Singh (supra) to establish a method of principled sentencing. This Court also imposed an obligation on the State to provide material disclosing psychiatric and psychological evaluation of the accused which would help the courts understand the progress of the accused towards reformation.
52. In Madan vs State of U.P., 2023 SCC OnLine SC 1473, this Court was dealing with a case wherein the accused was sentenced to death, along with other coaccused, for murdering six persons of his village. This Court called for the jail conduct report and psychological report of the accused which were satisfactory and depicted nothing out of the ordinary. This Court also took into consideration the old age of the accused and period undergone [18 yrs.] as mitigating factors. This Court concluded that the case did not fall under the rarest of rare category and commuted the death sentence to life imprisonment for minimum 20 (twenty years) including sentence undergone.
53. In Sundar vs State by Inspector of Police- 2023 SCC OnLine SC 310, this Court, while sitting in review, commuted death sentence awarded to accused therein to life imprisonment of minimum 20 (twenty years). The accused had committed rape and murder of a 7-year-old girl. Factors that influenced this Court to reach such a decision were the fact that no court had looked at the mitigating factors. It called for jail conduct and education report from the jail authorities and found that the conduct was satisfactory and that accused had earned a diploma in food catering while he was incarcerated. Apart from the above, the Court noted the young age of the accused, no prior antecedents to reach a conclusion warranting modification in the sentence awarded.
54. In Ravinder Singh vs State Govt. of NCT of Delhi- (2024) 2 SCC 323, the accused was convicted under Sections 376, 377 & 506 of the IPC for raping his own 9- year-old daughter by the Sessions court and conviction was confirmed by the High Court. The Sessions Court, while imposing life imprisonment, also stated that the accused would not be given any clemency by the State before 20 years. This Court clarified that, as discussed in V. Sriharan (supra), the power to impose a special category sentence i.e., a sentence more than 14 years but short of death sentence can only be imposed by the High Court or if in appeal, by this Court. Considering the nature of the offence committed by the accused and the fact that if the accused is set free early, he can be a threat to his own daughter, this Court imposed a minimum 20 (twenty years) life imprisonment without remissions.
55. A survey of the 27 cases discussed above indicates that while in five cases, the maximum of imprisonment till the rest of the life is given; in nine cases, the period of imprisonment without remission was 30 years; in six cases, the period was 20 years (In Ramraj (supra), this Court had imposed a sentence of 20 years including remission); in four cases, it was 25 years; in another set of two cases, it was 35 years and in one case, it was 21 years.
56. What is clear is that courts, while applying Swamy Shraddananda (supra), have predominantly in cases arising out of a wide array of facts, keeping the relevant circumstances applicable to the respective cases fixed the range between 20 years and 35 years and in few cases have imposed imprisonment for the rest of the life. So much for statistics. Let us examine how the judgments guide us in terms of discerning any principle.
57. A journey through the cases set out hereinabove shows that the fundamental underpinning is the principle of proportionality. The aggravating and mitigating circumstances which the Court considers while deciding commutation of penalty from death to life imprisonment, have a large bearing in deciding the number of years of compulsory imprisonment without remission, too. As a judicially trained mind pores and ponders over the aggravating and mitigating circumstances and in cases where they decide to commute the death penalty they would by then have a reasonable idea as to what would be the appropriate period of sentence to be imposed under the Swamy Shraddananda (supra) principle too. Matters are not cut and dried and nicely weighed here to formulate a uniform principle. That is where the experience of the judicially trained mind comes in as pointed out in V. Sriharan (supra). Illustratively in the process of arriving at the number of years as the most appropriate for the case at hand, which the convict will have to undergo before which the remission powers could be invoked, some of the relevant factors that the courts bear in mind are:- (a) the number of deceased who are victims of that crime and their age and gender; (b) the nature of injuries including sexual assault if any; (c) the motive for which the offence was committed; (d) whether the offence was committed when the convict was on bail in another case; (e) the premeditated nature of the offence; (f) the relationship between the offender and the victim; (g) the abuse of trust if any; (h) the criminal antecedents; and whether the convict, if released, would be a menace to the society. Some of the positive factors have been, (1) age of the convict; (2) the probability of reformation of convict; (3)the convict not being a professional killer; (4) the socioeconomic condition of the accused; (5) the composition of the family of the accused and (6) conduct expressing remorse. These were some of the relevant factors that were kept in mind in the cases noticed above while weighing the pros and cons of the matter. The Court would be additionally justified in considering the conduct of the convict in jail; and the period already undergone to arrive at the number of years which the Court feels the convict should, serve as part of the sentence of life imprisonment and before which he cannot apply for remission. These are not meant to be exhaustive but illustrative and each case would depend on the facts and circumstances therein.
58. How do these factors apply to the case at hand? The act committed by the accused was preplanned/premeditated; the accused brutally murdered 4 (four) persons who were unarmed and were defenseless, one of whom was a child and the other an aged lady. It is also to be noted that by the act of the accused, three generations of single family have lost their lives for no fault of theirs; Nature of injuries inflicted on Latha, Ramachandran and Chitra highlights the brutality and coldbloodedness of the act.
59. On the mitigating side, the accused was quite young when he committed the act i.e., 28 years old; The act committed by the accused was not for any gain or profit; accused did not try to flee and in fact tried to commit suicide as he was overcome with emotions after the dastardly act he committed; accused has been in jail for a period of 18 years and 4 months and the case is based on circumstantial evidence. We called for a conduct report of the appellant from the Jail Authorities. The report dated 05.03.2024 of the Superintendent, Central Prison and Correctional Home, Viyyur, Thrissur has been made available to us. The report indicates that ever since his admission to jail, he had been entrusted with prison labour work such as duty of barber, day watchman and night watchman. Presently, he has been assigned the job as convict supervisor for the last one and a half years. The report clearly indicates that no disciplinary actions were initiated against him in the prison and that the conduct and behavior of the appellant in prison has been satisfactory so far.
Conclusion:
60. For the reasons stated above, we uphold the judgment of the High Cout insofar as the conviction of the appellant under Sections 302, 449 and 309 IPC is concerned. We also do not interfere with the sentence imposed on the accused for the offence under Section 449 and Section 309 of IPC. We hold that the High Court was justified on the facts of the case in following Swamy 60. For the reasons stated above, we uphold the judgment of the High Cout insofar as the conviction of the appellant under Sections 302, 449 and 309 IPC is concerned. We also do not interfere with the sentence imposed on the accused for the offence under Section 449 and Section 309 of IPC. We hold that the High Court was justified on the facts of the case in following Swamy Shraddananda (supra) principle while imposing sentence for the offence under Section 302 IPC. However, in view of the discussion made above, we are inclined to modify the sentence under Section 302 imposed by the High Court from a period of 30 years imprisonment without remission to that of a period of 25 years imprisonment without remission, including the period already undergone. In our view, this would serve the ends of justice.
For the reasons stated above, the Appeal is partly allowed in the above terms."
36. In the light of Swamy Shraddananda's Case (Supra) and the provisions of Section 376 AB of IPC as well as Section 5/6 of POCSO Act, we find that the sentence of capital punishment be commuted to life imprisonment as the trial Court while awarding death sentence has not recorded any mitigating circumstances in the instant case though it is noticed that in the judgment relied upon by the Trial Court in Bachchan Singh vs. State of Punjab, AIR 1980 SC 898, the aggravated as well as mitigating circumstances are noticed. The Trial Court has not recorded any finding that if the death sentence to the appellant is commuted to life imprisonment, it will create fear and chaos in the public at large. However, we find the following mitigating circumstances from the record.
(i) The accused who is aged about 29 years at the time of incident has no criminal history and has his family to support.
(ii) Both the families of victim and accused were having visiting terms with each other and, therefore, the possibility of reformation and rehabilitation of the appellant in the society cannot be ruled out as the Trial Court has not recorded any finding that awarding severest punishment is the only possibility in the present case.
(iii) The Trial Court has also not recorded any finding that accused can be a menace to the society before awarding capital punishment.
(iv) The Trial Court has not recorded any aggravating circumstances against the appellants which can over weigh the mitigating circumstances especially, when the appellant has no criminal history.
(v) In view of Navas alias Mulanvas Case (Supra), there should be exceptional circumstances warranting imposition of excess death penalty which cannot be reversed.
(vi) Lastly, the trial court has also not recorded any finding as to how the present case is rarest of the rare case even though the accused has committed the gravest offence.
37. Therefore, we are of the opinion that the capital punishment awarded to the appellant should be commuted to life imprisonment for a fixed term of 25 years without any remission. The order of sentence qua the fine is upheld with the aforesaid modification.
38. With the aforesaid modification, the appeal qua conviction is dismissed. However, the appeal qua sentence is partly allowed and the sentence is modified.
39. The accused appellant is in jail. He will undergo the remaining sentence in accordance with law.
40. Record and proceedings be sent back to the Trial Court forthwith.
Order Date :- 23.07.2024 DKS/Mukesh/Mohini