Karnataka High Court
Addl District And Sessions Judge - ... vs Jayban Adivasi @ Jay Singh on 6 February, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2026
R
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL REFERRED CASE NO.2/2024
C/W
CRIMINAL APPEAL NO.2216/2024
CRIMINAL APPEAL NO.2246/2024
IN CRIMINAL REFERRED CASE NO.2/2024:
BETWEEN:
1. THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
BENGALURU-560 001. ... COMPLAINANT
(BY SMT. RASHMI JADHAV, ADDL. SPP)
AND:
1. MR. JAYBAN ADIVASI @ JAY SINGH
AGED ABOUT 25 YEARS,
S/O JITENDRA SINGH @ SRIJITH SINGH,
R/AT JUDAMADAYAR SALIHA VILLAGE,
KHALDA PAVAI TEHISIL,
PANNA DISTRICT,
MADHYA PRADESH STATE-488446.
2. MR. MUKESH SINGH
AGED ABOUT 23 YEARS,
S/O ESHWARI SINGH BIRBAHI,
2
R/AT KALDA BACCHAN POST,
PANNA DISTRICT,
MADHYA PRADESH STATE-488333.
3. MR. MANISH THIRKI
AGED ABOUT 42 YEARS,
S/O JAGADISH THIRKI,
R/AT 3-132, OLD G TYPE, KHULARI,
RANCHI, JHARKAND STATE-829205.
4. SEETHA RANTHU LOHAR SIRINGEDA
JAMAPNI POST, BAMBAL KERE STATION
TETAITINGAR SINDEGA
JHARKHAND-835223
PRESENTLY
R/AT RAJ TILES FACTORY
PARARI TIRUVAIL GRAMA
VAMANJOOR
MANGALURU-575006. ... RESPONDENTS
(BY SRI. VIKRAM RAJ A., ADVOCATE FOR R1;
SRI. ASHWIN JOYSTON KUTINHA, ADVOCATE FOR R2 AND R3;
SRI. TEJAS N., ADVOCATE FOR R4
[APPOINTED AS AMICUS CURIAE])
THIS CRIMINAL REFERRED CASE IS REGISTERED AS
REQUIRED UNDER SECTION 366(1) OF CR.P.C. FOR
CONFIRMATION OF THE SENTENCE OF DEATH PENALTY
IMPOSED ON THE ACCUSED NO.1 - JAYBAN ADIVASI @ JAY
SINGH, AGED ABOUT 25 YEARS, S/O JITENDRA SINGH @
SRIJITH SINGH, R/AT JUDAMADAYAR, SALIHA VILLAGE,
KHALDA, PAVAYI TEHISIL, PANNA DISTRICT, MADHYA PRADESH
STATE, ACCUSED NO.2 - MUKESH SINGH, AGED ABOUT 23
YEARS, S/O ESHWARI SINGH BIRBAHI, R/AT KALDA BACCHAN
POST, PANNA DISTRICT, MADHYA PRADESH STATE AND
ACCUSED NO.3 - MANISH THIRKI, AGED ABOUT 42 YEARS, S/O
JAGADISH THIRKI, R/AT 3-132, OLD G TYPE, KHULARI, RANCHI,
JHARKAND STATE, PASSED BY THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, FTSC-II (POCSO), D.K., MANGALURU,
3
CONVICTION SPL.CASE.NO.10/2022 BY THE JUDGMENT OF
CONVICTION DATED 29.10.2024 AND ORDER OF SENTENCE
DATED 07.11.2024 FOR THE OFFENCES PUNISHABLE UNDER
SECTION 120B R/W SECTIONS 376DB, 366A, 377, 376DB OF
IPC AND SECTION 6 OF POCSO ACT, 302 AND 201 R/W 34 OF
IPC.
IN CRIMINAL APPEAL NO.2216/2024:
BETWEEN:
1. MR. MUKESH SINGH
AGED ABOUT 23 YEARS
S/O ESHWARI SINGH BIRBAHI
R/AT KALDA BACCHAN POST
PANNA DISTRICT
MADHYA PRADESH-488333.
2. MR. MANISH THIRKI,
AGED ABOUT 42 YEARS,
S/O JAGADISH THIRKI,
R/AT 3-132, OLD G TYPE,
KHULARI, RANCHI,
JHARKHAND - 829205. ... APPELLANTS
(BY SRI. ASHWIN JOYSTON KUTINHA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH MANAGALURU RURAL POLICE STATION
REPRESENTED BY STATE PUBHLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560001.
2. SMT. SEETHA
AGED ABOUT 31 YEARS
W/O RANTHU LOHAR
R/AT SIRINGBEDA
4
JAMAPNI POST
BAMBAL KERE STATION
TETAITINGAR, SINDEGA
JHARKHAND-835223
PRESENTLY
R/AT RAJ TILES FACTORY
PARARI TIRUVAIL GRAMA
VAMANJOOR
MANGALURU-575006. ... RESPONDENTS
(BY SMT. RASHMI JADHAV, ADDL. SPP FOR R1;
SRI. TEJAS N. AMICUS CURIEA FOR R2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2)OF CR.P.C PRAYING TO SET ASIDE THE JUDGEMENT
DATED 29.10.2024 AND ORDER OF SENTENCE DATED
07.11.2024 IN SPL.C.NO.10/2022, PASSED BY THE HON'BLE
COURT OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE,
FTSC-II (POCSO) D.K., MANGALURU, FOR OFFENCES
PUNISHABLE UNDER SECTIONS 302, 376DB, 120(B), 366(A),
377, 201 R/W 34 OF IPC, SECTION 6 OF POCSO ACT, AND
ACQUITTAL OF THE APPELLANT IN THE ABOVE CASE.
IN CRIMINAL APPEAL NO.2246/2024:
BETWEEN:
1. MR. JAYBAN ADIVASI @ JAY SINGH
AGED ABOUT 25 YEARS
S/O JITENDRA SINGH @ SRIJITH SINGH
R/AT JUDAMADAYAR
SALIHA VILLAGE
KHALDA, PAVAI TEHISIL
PANNA DISTRICT
MADHYA PRADESH-488446. ... APPELLANT
(BY SRI. VIKRAM RAJ A., ADVOCATE)
5
AND:
1. THE STATE OF KARNATAKA
THROUGH MANGALRUU RURAL POLICE STATION
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560001.
2. SMT. SEETHA
AGED ABOUT 31 YEARS
W/O RANTHU LOHAR
R/AT SIRINGBEDA
JNAPANI POST
BAMBAL KERA STATION
TETAITINGAR, SINDEGA
JHARKHAND-835223.
RPESENTLY RAJ TILES FACTORY
PARARI, TIRUVAIL GRAMA
VAMANJOOR
MANGALURU-575006. ... RESPONDENTS
(BY SMT. RASHMI JADHAV, ADDL. SPP FOR R1;
SRI. SANTHOSH N., ADVOCATE FOR R2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.PC (FILED U/S 415(2) BNSS) PRAYING TO SET ASIDE THE
JUDGMENT DATED 29.10.2024 AND ORDER OF SENTENCE
DATED 07.11.2024 IN SPL.C.NO.10/2022 PASSED BY THE
HON'BLE COURT OF THE ADDL. DISTRICT AND SESSIONS
JUDGE, FTSC-II (POCSO) MANGALURU, FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 302, 376DB, 120B, 366A, 377,
201 R/W 34 OF IPC AND SECTION 6 OF POCSO ACT AND ORDER
THE ACQUITTAL OF THE APPELLANT IN THE ABOVE CASE.
THIS CRIMINAL REFERRED CASE AND APPEALS HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON 20.01.2026
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE VENKATESH NAIK T
CAV ORDER
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
Heard Smt. Rashmi Jadhav, learned Additional SPP for the
complainant/State and Sri Vikram Raj A., learned counsel for
respondent No.1, Sri Ashwin Joyston Kutinha, learned counsel
for respondent Nos.2 and 3 and Sri Tejas N., learned counsel
appointed as Amicus Curie for respondent No.4 in
Crl.R.C.No.2/2024. Heard Sri Ashwin Joyston Kutinha, learned
counsel for the appellants and Smt. Rashmi Jadhav, learned
Additional SPP for respondent No.1, Sri Tejas N., Amicus Curie
for respondent No.2 in Crl.A.No.2216/2024. Heard Sri Vikram
Raj A., learned counsel for appellant and Smt. Rashmi Jadhav,
learned Additional SPP for respondent No.1 and Sri Santhosh N.,
learned counsel for respondent No.2 in Crl.A.No.2246/2024.
2. The appeals in Crl.A.Nos.2216/2024 and 2246/2024
are filed by the accused and Crl.R.C.No.2/2024 is received from
the Sessions Court for confirmation of death sentence. The trial
7
Judge having considered both oral and documentary evidence
convicted accused Nos.1 to 3 having found that they committed
the offence of conspiracy under Sections 120B, 366A, 376(A)(D),
377 and 302 read with Section 34 of IPC and also Section 5 and
6 of POCSO Act. The challenge is made by accused Nos.1 to 3 by
filing separate appeal questioning the conviction and sentence.
3. The following sentences are imposed against accused
Nos.1 to 3:
"The accused No.1 to 3 named Jaiban Adivasi,
Mukesh Singh and Manish Thirki are sentenced to
death penalty by way of hanging until their last
breath for the offences punishable u/Secs.302,
376DB, 120B of IPC and Sec.6 of POCSO Act r/w
Sec.34 of IPC.
The accused persons are further sentenced to
undergo rigorous imprisonment for a term of 5 years
(Five years) and to pay fine of Rs.10,000/- (Rs.Ten
Thousand only) each for the offence punishable
U/Sec. 366A r/w 34 of IPC and in default of payment
fine, they shall further undergo Simple Imprisonment
for a period 2 months (Two months) beyond the said
period.
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The accused persons are further sentenced to
undergo rigorous imprisonment for a term of 10
years (Ten years) and to pay fine of Rs.20,000/- (Rs.
Twenty Thousand only) each for the offence
punishable U/Sec.377 r/w 34 of IPC and in default of
payment fine, they shall further undergo Simple
Imprisonment for a period 4 months (Four months)
beyond the said period.
The accused persons are further sentenced to
undergo rigorous imprisonment for a term of 5 years
(Five years) and to pay fine of Rs.10,000/- (Rs.Ten
Thousand only) each for the offence punishable
U/Sec.201 r/w 34 of IPC and in default of payment
fine, they shall further undergo Simple Imprisonment
for a period 2 months (Two months) beyond the said
period".
4. The Trial Court ordered that the sentences of
accused Nos.1 to 3 shall run concurrently. The Trial Court also
ordered to pay entire fine amount of Rs.1,20,000/- to P.W.1 and
P.W.22 i.e., parents and since the same was inadequate,
direction was given to District Legal Service Authority/State
Government to pay additional compensation of Rs.3,80,000/- to
them under Section 357A of Cr.P.C. read with Karnataka Victim
9
Compensation Scheme, 2011 and Rule 7 of the Protection of
Children from Sexual Offences Rules, 2012 and also directed to
submit the entire records pertaining to this proceedings to the
Hon'ble High Court of Karnataka for confirmation of death
penalty imposed on the accused persons as per the provisions of
Section 366 of Cr.P.C . Hence, reference as well as two separate
appeals filed by accused No.1 and accused No.2 and 3 are taken
up together for common consideration. The accused No.4
absconded during midst of the proceedings of the Trial Court.
Hence, the matter is considered only in respect of accused Nos.1
to 3 only, who have faced the trial and suffered conviction and
sentence.
5. The factual matrix of case of the prosecution is that
on 20.11.2021, the accused Nos.1 to 3 being the workers of Raj
Tiles Factory situated at Perari, Vamanjoor, Mangaluru along
with accused No.4 conspired in the room of accused No.3-
Manish Thirki which is situated in the factory premises to commit
the rape on 8 year old deceased victim girl, who is the daughter
of P.W.1 and P.W.22, who were also working in the said factory
10
and they used to stay in the factory quarters on the next day
which happened to be a Sunday by taking advantage of holiday
to the factory and that there will be no workers in the premises
i.e., on 21.11.2021, in furtherance of their common intention
between 1.00 to 1.30 p.m., accused Nos.1 to 3 and split up
accused No.4 came near the deceased victim girl, who was
playing with her brother and sister and gave her chikkies and
also gave some coins to purchase eateries and took her inside
the factory to brick kiln bearing Room No.1 which was not being
used by anybody for several years where CCTV camera was not
installed. Firstly, accused No.2 committed rape on the deceased
victim girl by removing her shorts and thrown the same outside
the room and committed unnatural sexual assault. Then,
accused No.3 also committed rape on her. Thereafter, accused
No.1 committed sexual assault. Due to which, the victim girl
suffered severe bleeding injuries in her vagina. When she was
crying out of pain, the accused No.1 closed her mouth with one
hand and also pressed her neck with another hand forcefully due
to which she died in the spot itself. Thereafter, in order to
destroy the evidence of commission of offence, they shifted the
11
dead body of the deceased victim and placed her dead body in a
drainage covered by stone slabs. The charges levelled against
accused No.4 is that he was watching outside the said room to
give signal to them regarding arrival of anybody and was waiting
for his turn to commit sexual assault on the victim and co-
operated with accused Nos.1 to 3 and after coming to know
about the death of deceased victim girl, body was shifted and he
escaped along with accused No.2 from the said spot without
giving any information to the complainant. Hence, the accused
are booked by setting the law into motion.
6. Having traced the dead body of the deceased victim
girl and noticing that private parts and the anus of the victim girl
were blood stained and that before committing the murder, she
was raped, the mother of the deceased victim lodged complaint
before the police and based on the said complaint, Crime
No.95/2021 was registered at the first instance for the offence
punishable Sections 376 and 302 of IPC and Sections 5 and 6 of
POCSO Act. Then the matter was taken up for further
investigation and conducted the procedure of drawing of
12
mahazar at the spot where the dead body was kept after
removing the same from the drainage and dead body was sent
to hospital for post mortem. The inquest was conducted and post
mortem was also conducted on the next day and recorded the
statements of C.W.4 and C.W.5 and visited the spot and
conducted detailed spot mahazar and summoned the forensic
experts from RFSL to collect the evidence of the crime and
collected the blood stains found at various spots in the said
factory including the spot where the deceased victim was raped
and murdered and where the body was hidden, also recovered
the shorts of the deceased and collected CCTV footage from the
owner of the said factory with the help of CCTV Technician. The
Investigating Officer recorded the statement of witnesses and at
the first instance, arrested accused Nos.1 and 3 and mobiles
used by them were seized after checking CCTV footage and after
enquiry, recorded their confession statements. Then, arrested
accused No.2 and accused No.4 was split up from the case and
seized their mobiles and recorded their voluntary statement. The
accused Nos.1 to 4 were subjected to medical examination and
they were also taken to the custody after getting the Court
13
order. The recovery of clothes of the accused were made after
getting panch witnesses and seized the clothes of accused Nos.1
to 3 and also chikki packets kept by the accused No.1 in his
room by drawing the recovery mahazar. Then proceeded to the
place of incident where mahazar was drawn in the place shown
by all the accused, then proceeded to the place where the
accused No.2 and split up accused No.4 were said to have kept
their clothes and the recovery mahazar was drawn in the said
place situated at Puttur Taluk. Thereafter, blood samples of all
the accused were drawn in the presence of Magistrate for DNA
test and also statement of brother of the victim was recorded,
post mortem report of the deceased was collected along with
viscera, the medical examination reports and biological samples
of accused were also collected. On completion of the
investigation, the police filed the charge-sheet. The accused
persons were arrested and they were in custody till 29.11.2021
and then, they were remanded to judicial custody. Ever since the
said date, accused Nos.1 to 3 are still in judicial custody.
However, accused No.4 was released on bail and after conclusion
of trial, he absconded.
14
7. The Trial Court having taken note of charge-sheet
materials, took cognizance of the offence and secured the
presence of accused Nos.1 to 4 and they have been heard and
charges were framed and accused did not plead guilty and
claimed for trial.
8. The prosecution, in order to prove the case,
examined P.W.1 to P.W.30 and got marked 74 documents as
Exs.P1 to P74 and 45 material objects were marked as M.Os.1 to
45. Thereafter, the accused Nos.1 to 4 were examined under
Section 313 of Cr.P.C. and they denied all the incriminating
circumstances and the accused Nos.1 to 4 have not led any
evidence. The accused No.4 had participated in trial and after
having heard the arguments of both sides, including the learned
counsel for split up accused No.4, when the case was posted for
judgment, he remained absconded from 04.09.2024 and inspite
of issuance of NBW, he could not be secured. Hence, proceeded
to consider the matter in respect of accused Nos.1 to 3, since
they were in judicial custody and split up charge-sheet is filed
against accused No.4 and the case was considered on merits
15
against accused Nos.1 to 3 and found guilt of the accused.
Hence, accused No.1 has filed separate appeal and accused
Nos.2 and 3 have filed separate appeal challenging conviction
and sentence.
9. Learned counsel for accused No.1 in
Crl.A.No.2246/2024 in his argument would vehemently contend
that accused No.1 is 25 years old and he is unmarried. The case
of the prosecution is that accused Nos.1 to 3 had forceful sexual
intercourse. The accused Nos.1 and 3 were arrested on
23.11.2021 and recorded voluntary statement as per Ex.P45.
The counsel would submit that role of the accused was
suspected on the ground that earlier also there was quarrel in
respect of touching the girl. The counsel would vehemently
contend that P.W.1 had lodged the complaint in terms of Ex.P1
i.e., the mother of the victim and at the first instance, the case
was registered in Crime No.95/2021 against unknown accused
persons. The counsel would vehemently contend that case rests
upon circumstantial evidences and the prosecution mainly relies
upon the evidence of P.W.1 to P.W.30 and documentary
16
evidence of Exs.P1 to P74 and M.Os.1 to 45. The counsel in his
notes of arguments given the details with regard to the events
from day one till completion of the investigation. The counsel
would vehemently contend that accused No.1 had completely
denied all the charges and alleged circumstances. The counsel
would vehemently contend that set of circumstances carved out
by the prosecution in the charge-sheet was based on three
points, mainly previous suspicion, last scene theory and
recoveries from the accused person.
10. The main contention of accused No.1 is that his
presence in the entire premises is not an incriminating
circumstance against him, as he used to work and live in the
premises, he being seen in the CCTV is not at all a proof of guilt.
The counsel would contend that the prosecution failed to prove
the case against accused No.1 and not proved the case beyond
reasonable doubt.
11. The counsel, in support of his argument, relied upon
the judgment of the Apex Court in SHARAD BIRDICHAND
SARDA vs. STATE OF MAHARASHTRA reported in (1984) 4
17
SCC 116, wherein the Apex Court has laid down the five tests to
be satisfied in a case based on circumstantial evidence:
"1. The circumstances from which the conclusion of
guilt is to be drawn should be fully established.
2. The facts so established should be consistent only
with the hypothesis of the guilt of the accused, that
is to say, they should not be explainable on any
other hypothesis except that the accused is guilty.
3. The circumstances should be of a conclusive
nature and tendency.
4. They should exclude every possible hypothesis
except the one to be proved, and
5. There must be a chain of evidence so complete as
not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human probability
the act must have been done by the accused."
12. The counsel would vehemently contend that in
paragraph No.153 of the judgment, the Apex Court has held that
we may say so, constitute the panchsheel of the proof of a case
based on circumstantial evidence. The counsel also brought to
18
notice of this Court paragraph Nos.153, 155, 156, 178 and 179,
wherein the Apex Court has held that a moral conviction, even
though motive is strong and genuine cannot amount to a legal
conviction and also an observation is made in paragraph No.179
that well established rule of criminal justice is that 'fouler the
crime higher the proof' and when the life and liberty of an
individual was at stake, the Court has to take note of the
material on record, particularly since the accused was given a
capital sentence, a very careful, cautious and meticulous
approach is necessary to be made.
13. The counsel also relies upon the judgment of the
Apex Court in RAJA @ RAJINDER vs. STATE OF HARYANA
reported in (2015) 11 SCC 43, wherein the Apex Court
reiterated that in a case of circumstantial evidence, entire
burden of proof is purely on the shoulder of prosecution, they
have to prove each circumstance beyond reasonable doubt and
all circumstances must form an unbreakable chain of
circumstances which will implicate the accused for the charges.
19
Hence, each circumstance has to be dealt independently and
tested about its veracity.
14. The counsel in his argument would vehemently
contend that father and mother of the deceased child said that
they had suspicion against accused Nos.1 to 3, as these people
were playing with their child and they had fought with accused
on previous occasions. The father was examined as P.W.22,
mother was examined as P.W.1 and brother of the deceased was
also examined as P.W.21. But, he says that accused Nos.1 to 3
had taken his sister while they were playing. The counsel would
vehemently contend that the evidence of these witnesses is not
convincing and parents of the deceased have not stated anything
about the same in their complaint with regard to the previous
behaviour as well as suspicion against them. The counsel also
vehemently contend that the suspicion by itself is not an
evidence of any sort. Hence, the circumstances cannot be
considered as there is no basis for their suspicion. But, the Trial
Court has brushed aside the above argument and failed to
consider the fact that if the mother of the deceased had doubt
20
and if she was informed by P.W.5-Deekshitha about her child
being seen together with the accused, prior to lodging of
complaint, she would have disclosed it at the first instance and
she had no reason not to mention it in her statement at the
earliest point of time. The Trial Court held that there was
conspiracy to commit this offence as there was suspicion based
on previous behaviour of the accused persons with the child and
that accused used to offer her chikki and chocolate and touching
her inappropriately. The Trial Court comes to the conclusion that
accused No.1 bought chikki is also an incriminating evidence
against him, whereas there is no evidence that the deceased
child had consumed chikki. The counsel also would vehemently
contend that the Trial Court in paragraph No.65 held that
accused No.1 is seen going outside the factory and coming inside
the factory holding something in his hand at 11.00 a.m. and
suddenly jumps into the conclusion that accused No.1 conspired
with other accused and the very approach of the Trial Court is
erroneous, particularly with regard to the previous behaviour
and suspicion.
21
15. The counsel would vehemently contend that other
circumstances of the prosecution is with regard to last scene
theory and relies upon the evidence of P.W.5. It is the case of
the prosecution that entire incident took place inside the factory
protected by the compound wall. Factory is admittedly not a
human-less zone, rather there are more than 30 people living
inside the small rooms available inside. By the CCTV footage
presented by the prosecution, it becomes clear that people were
always moving around very freely. But, the case of the
prosecution is that accused No.1 along with other accused was
with the deceased and mainly relies upon the evidence of P.W.5.
The evidence of P.W.5 is that when her daughter wanted to play
with the children, she took her daughter and found Sushmitha,
the victim, her sister and brother were playing and she made her
daughter also to play along with them. At that time, accused
Nos.1 to 3 came in a drunken stage and held victim Sushmitha
and her brother, put them on their shoulder and they were
dancing. Having noticed the same, she came along with her
daughter to her house. It is also her evidence that P.W.1 and
P.W.2 have stated that other children came, but Sushmitha did
22
not return to house and she disclosed the very act of accused
Nos.1 to 3. If really, P.W.5 had made such statement with P.W.1
and P.W.22, the complainant would have disclosed the same in
the complaint itself. The counsel also would submit that,
moreover in CCTV, there is no evidence to show that accused
were playing with the deceased. The counsel also would contend
that the prosecution relies upon last scene theory by examining
P.W.21, who is the brother of the victim. The evidence of P.W.21
is also not credible and contend that statement of the brother
was recorded on 15.12.2021. P.W.1 and P.W.22, father and
mother never deposed that their son had seen the accused
persons taking away the child. But, there was an improvement in
the evidence of P.W.21 and answer elicited from the mouth of
P.W.21 is clear that while playing, nobody came to the spot.
Hence, doubt arises that child had informed the parents. The
P.W.1 and P.W.22 in the deposition have not told anything about
their younger child witnessing any event connected to the
incident. The counsel also vehemently contend that Investigating
Officer has recorded the statement of the child after 24 days,
23
even though the child was taken by the police on 01.12.2021
and 08.12.2021 and has not given any statement.
16. The counsel in support of his argument relied upon
the judgment of the Apex Court in SHANKARLAL GYARASILAR
DIXIT vs. STATE OF MAHARASHTRA reported in 1981 AIR
(SC) 765, the Apex Court in similar factual circumstances,
disbelieved a witness, who had not stated certain facts in his first
enquiry with the police and it can be safely concluded that police
and witnesses had taken enough time and planned and created
an eye-witness in the case.
17. The counsel also relied upon the judgment of the
Apex Court in GANESH BHAVAN PATEL vs. STATE OF
MAHARASHTRA reported in (1978) 4 SCC 371, wherein the
Apex Court has held with regard to the delay in recording
Section 161 statement by Investigating Officer and its
implications on prosecution case and observed that when the
witness could be available for examination and when the
Investigating Officer had visited the scene of occurrence or soon
thereafter would cast a doubt upon the prosecution case, if
24
Investigating Officer offers no satisfactory explanation and
hence, evidence of P.W.21 who being the last seen witness is an
afterthought and well planned addition and the same cannot be
even imagined and Investigating Officer has not offered any
reason for delay in recording the statement. But, the Trial Court
ignored this aspect and also ignored multiple contradictions in
the version of prosecution and stated that stray admission is not
fatal to the case of prosecution and failed to consider basic
human behaviour that if something bad happens, human will
pour out all the information which they have. P.W.5 stated
nothing on 21.11.2021 and 22.11.2021 and P.W.1 categorically
says in the complaint that when she enquired P.W.21, he says
that he had no idea about the victim and the child had no reason
to hide the same.
18. The third circumstance prosecution relies upon is
CCTV and it is clearly visible that accused No.1 was freely
moving around. The counsel also brought to notice of this Court
CCTV camera Nos.2 and 4 and timings that accused was going
out and coming inside the gate along with other persons, who
25
are not the accused and he was moving freely. The counsel
would contend that none of the CCTV footage discloses that
accused No.1 is seen in the company of the deceased and there
is nothing suspicious in the movement of accused No.1 and he is
roaming around with different set of people which will clearly
show that he had no knowledge about the incident and his last
seen theory does not survive for consideration solely because
there is no evidence suggestive of the fact that from 10.28 to
13.00 hours, deceased child appears with her siblings playing
around different part of the factory captured in camera Nos.8, 3
and 4. Accused No.1 is never seen together with the child. It
clearly shows that all the last scene theory witnesses are lying.
In the CCTV footage, deceased child was seen lastly with her
siblings at 1.00 p.m. as per camera No.4. Hence, the evidence of
P.W.5 is highly doubtful. If P.W.5 had witnessed the accused
Nos.1 to 3 playing with the child, he would have definitely stated
in the complaint and the same was not found. But, the Trial
Court committed an error in coming to the conclusion that
complaint and FIR is not an encyclopedia to disclose the same.
The Trial Court stated that there were suspicious movements
26
seen in the CCTV footage and this observation is speculation and
without any basis.
19. The fourth circumstance is alleged recoveries i.e.,
drawing of Ex.P6-recovery mahazar. According to the
prosecution those were the dresses worn by the accused at the
time of the incident and whether such recovery is proven beyond
reasonable doubt. P.W.6-Premanath is said to be the recovery
witness to the mahazar. According to him, accused No.2-Mukesh
and accused No.1-Jaisingh had shown their clothes and the same
was seized. But, whereas Ex.P6 shows that it was about the
alleged recovery from accused Nos.3 and 1. So, the entire
recovery is doubtful. The witness was also unable to tell the
colour of the clothes seized and which cloth belonged to whom
and prosecution have not taken any initiative to show the clothes
and mark it through the witness. Hence, the prosecution has not
proved recovery of clothes.
20. The counsel in support of his argument regarding
recovery would submit that the prosecution recovered pant,
shirt, underwear which are marked as M.Os.25 to 27 and hair
27
from underwear as M.O.28 and chikki as M.O.29 and as per the
evidence of P.W.6, above mentioned items were seized at the
instance of accused No.1. The counsel would submit that no
seminal stains were found in the above article and blood stains
were not detected in shirt and hair and blood stains were only
detected in pant and underwear. The FSL report is inconclusive
that no report as to whether it is human blood or animal blood
and no blood grouping was done. Hence, the counsel contends
that merely because blood stains being found in pant and
underwear, the same is incriminating evidence against the
accused cannot be considered as conclusive proof against the
accused.
21. The counsel in support of his argument relied upon
the judgment of the Apex Court in KANSA BEHERA vs. STATE
OF ORISSA reported in 1987 0 AIR (SC) 1507, wherein the
Apex Court in paragraph No.11 discussed regarding recovery of
shirt or dhoti with blood stains which according to the serologist
report, were stained with human blood, but there is no evidence
28
in the report of the serologist about the group of the blood and
therefore, it could not positively be connected with the deceased.
22. The counsel also relied upon the judgment of the
Apex Court in MUSTKEEM @ SIRAJUDEEN vs. STATE OF
RAJASTHAN reported in 2011 0 AIR (SCW) 4410 and
brought to notice of this Court paragraph No.23, wherein also
discussion was made that 'AB' blood group which was found on
the clothes of the deceased does not it by itself establish the
guilt of the appellant unless the same was connected with the
murder of the deceased by the appellant. The blood group which
was found on the recovered weapons cannot ipso facto enable us
to arrive at the conclusion that the later were used for the
murder.
23. The counsel also relied upon the judgment of the
Apex Court in RAJA NAYKAR vs. STATE OF CHHATTISGARH
reported in 2024 0 AIR (SC) (CRI) 365 and brought to notice
of this Court paragraph No.16, wherein the Apex Court has held
that as per the FSL report, the blood stains found on the dagger
were of human blood. However, FSL report does not show that
29
the blood found on the dagger was of the blood group of the
deceased.
24. The counsel also relied upon the judgment of this
Court, Dharwad Bench passed in Crl.A.NO.100335/2022
delivered on 26.11.2025 and brought to notice of this Court
paragraph Nos.24 and 25, wherein it is observed that before
parting with the judgment, we find it necessary to point out one
lapse on the part of Investigating Agency in not obtaining the
blood grouping report of the deceased in the case. In his
evidence, P.W.12-the Investigating Officer, has stated about the
recovery of blood stained articles from the scene of crime as well
as the seizure of the blood stained clothes on the persons of the
deceased and the accused and further FSL report states that the
blood was human blood of the 'O' blood group. However, the
prosecution has not produced any other material on record to
show that those blood stains were that of the deceased and
lapses were taken note of and relied upon the judgments of the
Apex Court which have been referred (supra) in MUSTKEEM's
case and RAJA NAYKAR's case, wherein it is held that very
30
purpose of collecting blood stained mud, clothes and other
incriminating articles during the course of investigation is to link
the circumstantial evidence and to corroborate the guilt of the
accused.
25. The counsel also relied upon the judgment of the
Apex Court in AJEET SINGH AND ORS. VS. STATE OF J&K
reported in 2018 0 SUPREME (J&K) 114. The counsel referring
this judgment would contend that, first of all, there is no FSL
report, therefore, corroboration of the prosecution version by the
so called FSL report does not arise at all. Since, there is no FSL
report, it cannot be ascertained as to whether the alleged blood
stains found on the apparel blood stains were in any way
connected with the deceased and there is no evidence to this
effect, the question of the appellants not been able to explain
the same does not arise at all.
26. The counsel also relied upon the judgment of the
Apex Court in FAGANURAM @ GOBHA S/O. BISAHURAM vs.
STATE OF CHHATTISGARH THROUGH THE POLICE
STATION MANPUR, DISTRICT RAJNANDGAON, CG reported
31
in 2017 0 SUPREME (CHH) 547, wherein at paragraph No.9, it
is held that when FSL report confirms the presence of blood on
the axe so seized but this alone cannot be made a basis to
connect the accused with the crime in question, unless it is
proved by the report of a serologist that the said blood was
human blood and that too of the blood group of the deceased,
seizure of blood stained axe is of no significance and brought to
notice of this Court paragraph No.11 of judgment of the Apex
Court in KANSA BEHERA's case (supra).
27. The other circumstance is in respect of DNA evidence
and there is no DNA evidence against the present appellant, who
is accused No.1 and the same is also acknowledged by the Trial
Court, but the Court went on to negate this proof in favour of
innocence of the accused and committed an error by observing
that the pant and underwear of accused No.1 had blood stains
which was of the human origin and 'B' blood group and also by
speculating that the accused No.1 might have ejaculated outside
and that is why there is no DNA evidence against the accused
No.1. The Trial Court has acted upon its belief of guilt/prejudice
32
being rather than evidence. In paragraph No.62, the Trial Court
also made an observation that absence of seminal stains of
accused Nos.1, 3 and 4 in the said DNA profile result will not
automatically rule out the possibility of accused Nos.1, 3 and 4
involving in the said sexual activity, as there are chances of
ejaculation outside the body of the deceased and this
observation is erroneous and observation that human blood
origin belongs to 'B' group of blood which belongs to the
deceased is also erroneous. The FSL which is marked as Ex.P66
does not state that the blood stains found in the above
mentioned articles are of human origin and belongs to 'B' group
and this observation is purely based on false assumption.
28. With regard to medical examination of accused No.1,
the counsel would contend that Dr. Rashmi, who has been
examined as P.W.16 has conducted medical examination of
accused No.1 and as per Ex.P35, no injuries were found on the
private part of the accused or anywhere in the body. Hence, this
is not an incriminating evidence against the accused and it
shows that accused No.1 is an innocent.
33
29. With regard to penile sample, it is the case of the
prosecution that penile swab of the accused had 'B' blood group
traces. But, in the evidence, it had come out that if a person who
is of 'B' blood group, his bodily fluid is tested (like penile swab or
any other bodily fluid), then it will show 'B' results. The evidence
of P.W.13 is also very clear with regard to the said aspect and
Ex.P25 as per the evidence of P.W.16, the blood group of
accused No.1 is also 'B' positive. Hence, the evidence of P.W.16
and P.W.13 also will not come to the aid of the prosecution.
30. The counsel referring these evidence and also the
material on record submits that there is no incriminating
evidence against accused No.1. It is contended that the accused
No.1 is seen freely roaming around Raj Tiles Factory on the date
of the incident. Hence, the accused No.1 is innocent of the
alleged offences and there is no material to come to a conclusion
that this accused also actively participated along with other
accused in committing the offence. Therefore, the counsel
prayed this Court to acquit accused No.1. The counsel also would
vehemently contend that the Trial Court committed an error in
34
convicting the accused for the offence invoked against him and
contend that imposition of capital punishment is also erroneous
and the same not warrants imposing of death sentence and no
aggravating circumstances are found. It is also contended that
no detailed discussion was made by the Trial Court for imposing
death sentence and it is not a case for imposing death sentence
and prayed this Court to set aside the conviction and sentence.
31. Learned counsel for the appellants/accused Nos.2
and 3 in other appeal submits that he adopts the arguments of
learned counsel for accused No.1 and also submits that the very
case of the prosecution is doubtful and no circumstance is
proved against accused Nos.2 and 3 and even though FSL report
is against accused No.2 that DNA report is positive and the said
circumstance only cannot prove the guilt of the accused and
other evidence available on record is not trustworthy and each
circumstances have not been proved and link also has not been
established while appreciating the evidence of the prosecution.
Hence, prays this Court to allow the other appeal filed by the
accused Nos.2 and 3.
35
32. Learned counsel i.e., Amicus Curie appearing for the
victim in his argument would vehemently contend that the Trial
Court has taken note of all the circumstances while convicting
the accused. The counsel would contend that the Trial Court
even taken note of gravity of the offence and rightly convicted
the accused for the death sentence, since the deceased victim
was aged about 7 years 7 months at the time of subjecting her
for sexual act and that too, subjecting the victim for sexual act
by the accused Nos.1 to 3 is nothing but a gang rape and
accused No.4 was watching outside when the accused Nos.1 to 3
were subjecting her for cruel sexual act against a girl below the
age of 12 years and punishment of death sentence was imposed
against accused Nos.1 to 3 having considered the cruel act done
by accused Nos.1 to 3 against a minor girl, who is aged about 7
years 7 months and the PM report also clearly discloses
voluminous injuries on the private part of the victim and all over
the body of the deceased which is nothing but committing the
brutal act of rape and later murdered the victim.
36
33. The learned Amicus Curiae in his further arguments
would vehemently contend that though FIR was registered
against unknown persons at the first instance at the time of
conducting the inquest, the father of the victim made the
statement that accused-Manish Thirki and Jay Singh were also
working in the factory and from last 3 to 4 months, giving
chocolate to his daughter and inappropriately touching her and
having noticed the same, he himself and his wife scolded the
said accused persons and hence, suspected on these two
accused persons in committing the offences while conducting
inquest. The counsel also would submit that accused persons
were taken to the custody and inquest is also marked as Ex.P3
wherein it is specifically stated about the act of the accused.
Having arrested the accused persons, blood samples and penile
swab were taken and the blood group of each of the accused is
also ascertained. The counsel also submits that on the basis of
voluntary statement at Ex.P45, P46, P48 and P49 clothes of the
accused were seized which were also blood stained and mahazar
was also drawn. The counsel also would submit that the
Investigating Officer also collected the blood sample from the
37
place where the incident has taken place and also where the
body was kept after shifting the body from one room to another
room. The counsel also would submit that PM report at Ex.P23
discloses there were 16 injuries on the dead body and opinion is
also given in terms of Ex.P24. The counsel would submit that the
DNA is positive in respect of accused Nos.2 and 4 that seminal
stains were found. The counsel also would submit that PW5
evidence is very clear that the accused persons were playing
with the victim before committing the sexual act. The counsel
also would submit that the brother of PW21 also in his evidence
spoken that the accused persons took his sister and after
playing, they went to the house, but Sushmita did not
accompany them and he also identified accused Nos.1 to 3 and
thus, this evidence is also very clear with regard to the last seen
theory by PW21 as well as PW5.
34. The counsel also would vehemently contend that the
incident was taken place within the factory premises. It is not in
dispute that accused Nos.1 to 3 are working in the very same
factory and CCTV footage also very clear that all of them were
38
roaming in the vicinity and the CCTV camera 2, 3, 4, 6 also
clearly discloses the very presence of accused persons. The
counsel also would submit that PW22 is the father of the victim
and PW6, PW7, PW9 are the recovery witnesses and they have
supported the case of the prosecution. The counsel also would
submit that penile swab which was collected evidenced the fact
that the same is B group. The counsel would vehemently
contend that the material collected by the IO is substantiated by
examining the prosecution witnesses. The counsel would
vehemently contend that PW12 categorically deposes that
accused No.1 used to purchase chikki from his shop. The counsel
also brought to notice of this Court PM report which is marked as
Ex.23 wherein it is observed that in abdomen, out of 506 gram,
contains 250 grams of undigested food particles mixed with
black colour powder particles with no characteristic perceptible
odor and the same corroborates with regard to the purchase of
chikki from the shop of PW12 on the same day and given to the
victim. The counsel also would vehemently contend that the
offence is committed against the minor girl under the POCSO Act
39
as well as under IPC, hence, there is a presumption and the said
presumption is not rebutted.
35. The counsel in support of his arguments, relies upon
the judgment of the Apex Court reported in (2025) 2 SCC 399
in the case of SAMBHUBHAI RAISANGBHAI PADHIYAR vs
STATE OF GUJARAT and brought to notice of this Court the
discussion made with regard to presumption under the POCSO
Act and in paragraph 33, the Apex Court made an observation is
that the deceased was subjected to a brutal sexual assault. The
injuries as evidenced in the post mortem report clearly indicate
that deceased was subjected to aggressive penetrative sexual
assault. Also an observation is made that matching of the blood
group coupled with other circumstantial evidence clearly
constitute foundational facts for raising presumption under
Sections 29 and 30 of the POCSO Act. The counsel referring this
judgment would vehemently contend that the Apex Court in
detail discussed both oral and documentary evidence placed on
record in the case.
40
36. The counsel would vehemently contend that the
prosecution mainly relies upon theory of last seen of the accused
with the deceased which was spoken by PW5 and PW21 in the
case on hand. Similarly, the Apex Court also discussed that the
accused found in the vicinity of the scene of crime at the time of
crime and injuries on the covered parts of the accused and also
conduct under Section 8 of the Evidence Act and the Apex Court
also taken note of matching of blood group. All these aspects
have been discussed in this judgment and the same is squarely
applicable to the case on hand. With regard to the sentence is
concerned, in paragraph 38, the Apex Court taken note of death
sentence imposed by the Trial Court and the same has been
confirmed by the High Court and held that it is time for us to
draw up a balance sheet of the aggravating and mitigating
circumstances to decide whether the case falls in the category of
rarest of the rare case and also taken note of possibility of
reformation and held that crime committed by the appellant was
diabolic in character. He enticed the innocent child by tempting
him with ice cream and brutally sodomized and murdered the 4
years old child. The appellant also mercilessly strangulated the
41
deceased. The post mortem report clearly indicated that the
death was due to asphyxia by throttling. Only a mitigating
circumstance is that appellant was 24 years of age when the
incident had happened. He had no criminal antecedents and he
hails from a low socio-economic household as the mitigation
investigation report filed by Ms Komal of Project 39-A, pursuant
to the order of this Court dated 05.10.2023 indicates and comes
to the conclusion that no possibility of reformation. However,
option of life imprisonment is also not foreclosed. The case does
not fall in the category of the rarest of rare case and ends of
justice would be done and maintaining the conviction substituted
the same with that of rigorous imprisonment for a period of 25
years without remission.
37. The counsel also relied upon the judgment reported
in (2022) 9 SCC 81 in the case of MANOJ PRATAP SINGH vs
STATE OF RAJASTHAN wherein discussion was made with
regard to the crime test, criminal test and rarest of the rare test
and also discussed with regard to the confirmation of death
sentence. While considering the same, the Apex Court taken
42
note of the scope of reformation and rehabilitation and also
discussed that when can be ruled out and if it is extremely brutal
and merciless rape and murder of physically and mentally
challenged minor of about 7 to 8 years and death sentence is
confirmed. The counsel referring this judgment brought to notice
of this Court paragraphs 56 and 48.1 wherein held that
kidnapping, rape and murder of a physically and mentally
challenged 7½ years old girl, challenge as to mental and physical
disabilities of the victim, held not sustainable, when the same
supported by medical evidence on record and there held no
merit in the defence contention that the certificate issued from
school to prove her mental caliber could not be relied upon
because the person who issued such certificate was never
examined. The Court also discussed crimes against women and
children and also the POCSO Act. In paragraph 48.1 held that
when chronology of the events and steps in the investigation left
nothing to doubt that the Investigating Officers and other police
officers indeed methodically discharged their duties and every
step found to be appropriately and punctually taken and all the
relevant processes methodically documented and where the
43
charge-sheet swiftly presented to the court with all relevant
particulars. The Apex Court also taken note that the defence are
not tenable with regard to the nature of the offence and also
taken note of child rape and murder and conviction under both
POCSO and IPC and same is not barred by Section 42 of POCSO
Act and held the mandate for awarding punishment which is
greater in degree does not correspondingly lead to the
proposition that the appellant could not have been convicted of
the offence under Section 376 of IPC as also under Section 6 of
POCSO and discussed Section 6 as well as Section 42 and
imposition of death sentence considering Section 235(2) and
254(3) read with Section 360 of Cr.P.C. and also the mandatory
provisions which were explained in paragraph 64. The Apex
Court also discussed with regard to the possibility of imposition
of death sentence under constitutional validity of Section 302 of
IPC and upheld the grounds on which the death sentence
imposed in the case of BACHAN SINGH vs STATE OF PUNJAB
reported in (1980) 2 SCC 684.
44
38. The counsel referring this judgment brought to
notice of this Court that the Apex Court in length discussed the
last seen theory and taken note that the minor girl who is aged
about 7½ years was mentally and physically challenged and
considered the report of FSL and defence which was taken was
rejected and comes to a conclusion that chain of circumstances
is complete. The Apex Court also taken note of death sentence
imposed by the Trial Court as well as High Court considering the
rival submissions and the scope and width of the appeals and
even considered the procedural questions relating to
investigation and trial and also discussed that whether
concurrent finding of fact requires interference. The counsel
brought to the notice of this Court paragraph 53.1 with regard to
consideration of prosecution evidence and paragraph 61 wherein
the Apex Court upheld the concurrent findings leading to the
conviction of the appellant. The Apex Court also discussed in
paragraph 62 that whether death sentence be maintained or
substituted by any other sentence and while dealing the same
also evolution of principles and norms of death sentence was
also taken note of and even discussed the protection of life and
45
personal liberty considering Article 21 of the Constitution of India
and even discussed the judgment of Bachan Singh in
paragraph 72 with regard to the constitutional validity and also
taken note of elements of mitigating factors and also the
aggravating circumstances in paragraph 87 and affirmed the
death sentence of the Trial Court and the High Court and did not
accept the mitigating circumstances and considered the
aggravating circumstances that is, extreme depravity and
barbaric manner of the crime outweighed the mitigating
circumstances.
39. The counsel also relied upon the judgment of the
Apex Court reported in (2019) 7 SCC 716 in the case of
MANOHARAN vs STATE BY INSPECTOR OF POLICE,
VARIETY HALL POLICE STATION, COIMBATORE wherein
also discussion was made with regard to aggravated penetrative
sexual assault by gang of two and sodomy committed on 10 year
old girl by tying her hands and murder of her 7 year old brother
along with her first by trying to poison them and then by pushing
them into canal when they were conscious and death sentence
46
affirmed and taken note of balance of aggravating and mitigating
circumstances are against the appellant. The counsel referring
this judgment brought to notice of this Court paragraphs 18, 19,
20, 22, 23 and 24. Ultimately in paragraph 24, discussed that
now the question arises is whether the death sentence should be
confirmed by this Court and mitigating circumstances in the
present case that the accused belongs to a rural area and he is
only 23 years old and has no other previous conviction and if let
out there will not be a menace to society and also discussed that
this is an extremely heinous crime committed ruthlessly and cold
bloodedly under aggravating circumstances made out by the
High Court clearly outweigh the alleged mitigating circumstances
and therefore, it is a clear case for the death penalty to be
imposed. The discussion was made with regard to the confirming
of the death sentence and also taken note of facts of the case in
paragraph 33, wherein held that no doubt that aggravated
penetrative sexual assault was committed on the 10 year old girl
by more than one person. The 10 year old girl child, who was
below 12 years of age, would fall within Section 5(m) of the
POCSO Act and also taken note of legislature's realization that
47
such crimes are on the rise and must be dealt with severely and
even extracted the statement of objections and reasons of the
amendment is important. In paragraph 34, taken note of the
discussion made by the Trial Court and High Court and held that
correctly applied and balanced aggravating circumstances with
mitigating circumstances to find that the crime committed was
cold-blooded and involves the rape of a minor girl and murder of
two children in the most heinous fashion possible. No remorse
has been shown by the appellant at all and given the nature of
the crime and majority accepted the reasoning of the Trial Court
and Appellate Court with regard to the death penalty.
40. The learned Amicus Curiae also relied upon the
judgment of the Apex Court reported in (2015) 1 SCC 253 in
the case of VASANTA SAMPAT DUPARE vs STATE OF
MAHARASHTRA wherein also discussion was made with regard
to the death sentence and reformation and rehabilitation and
possibility wherein also rape and murder of 4 years girl by 47
years old man and concurrent death sentence affirmed as the
manner in which the crime was committed did not suggest that
48
appellant, a history-sheeter, could be reformed and he was likely
to remain a menace to society, to prey upon defenceless and
there were no other mitigating circumstances found. The counsel
referring this judgment brought to the notice of this Court
paragraph 38 wherein held that on a critical analysis of the
evidence on record, we are convinced that the circumstances
that have been clearly established are: that the appellant was
seen in the courtyard where the minor girl and other children
were playing; that the appellant was seen taking the deceased
on his bicycle; that he had gone to the grocery shop owned by
PW 6 to buy Minto fresh chocolate along with her; that the
accused had told PW 2 that the child was the daughter of his
friend and he was going to "Tekdi-Wadi" along with the girl; that
the appellant had led to the discovery of the dead body of the
deceased, the place where he had washed his clothes and at his
instance the stones smeared with blood were recovered; that the
medical report clearly indicates about the injuries sustained by
the deceased on her body; that the injuries sustained on the
private parts have been stated by the doctor to have been
caused by forcible sexual intercourse; that the stones that were
49
seized were smeared with blood and the medical evidence
corroborates the fact that injuries could have been caused by
battering with stones; that the chemical analysis report shows
that the blood group on the stones matches with the blood group
found on the clothes of the appellant; that the appellant has not
offered any explanation with regard to the recovery made at his
instance; and that nothing has been stated in his examination
under Section 313 CrPC that there was any justifiable reason to
implicate him in the crime in question. Thus, we find that each of
the incriminating circumstances has been clearly established and
the chain of circumstances are conclusive in nature to exclude
any kind of hypothesis, but the one proposed to be proved, and
lead to a definite conclusion that the crime was committed by
the accused. Therefore, we have no hesitation in affirming the
judgment of conviction rendered by the learned trial Judge and
affirmed by the High Court.
41. The counsel referring the evidence of particular case
and also referring the factual aspects of this case would contend
that similar factual aspects found in the case and brought to
50
notice of this Court paragraph 57 of the said judgment wherein
an observation is made that we shall proceed to adumbrate what
is the duty of the Court when the collective conscience is
shocked because of the crime committed. When the crime is
diabolical in nature and invites abhorrence of the collective, it
shocks the judicial conscience and impels it to react keeping in
view the collective conscience, cry of the community for justice
and the intense indignation at the manner in which the brutal
crime is committed. It is also observed that Judges while
imposing sentence, should never be swayed away by any kind of
individual philosophy and predilections. It should never have the
flavour of Judge-centric attitude or perception. It has to satisfy
the test laid down in various precedents relating to the rarest of
the rare case and also taken note of the case of MACHHI
SINGH vs STATE OF PUNJAB reported in (1983) 3 SCC 470.
The counsel also brought to notice of this Court paragraph 60 of
the judgment wherein an observation is made that not only was
the rape committed in a brutal manner but murder was also
committed in a barbaric manner. The rape of a minor girl child is
nothing but a monstrous burial of her dignity in the darkness. It
51
is a crime against the holy body of a girl child and the soul of
society and such a crime is aggravated by the manner in which it
has been committed. The nature of the crime and the manner in
which it has been committed speaks about its uncommonness.
The crime speaks of depravity, degradation and uncommonality.
It is diabolical and barbaric. The crime was committed in an
inhuman manner which is nothing but the case of aggravating
circumstances. In paragraph 61, it is discussed that while
considering the material, found that circumstances would
graphically depict, he would remain a menace to society, for a
defenceless child has become his prey and found that there are
no mitigating circumstances and confirmed the death sentence.
42. The learned counsel appearing for respondent No.2
in Criminal Appeal No.2246/2024 would vehemently contend
that the Trial Court has taken note of all the circumstances and
brutality of the accused persons having committed the rape on
the minor girl who aged about 7 years 7 months and not only
raped her, even killed her. The counsel also would submit that
52
he will adopt the arguments of Amicus Curiae who has been
appointed in another connected appeal.
43. The learned Additional SPP appearing for the State
defending the sentence of the Trial Court imposing the death
penalty brought to notice of this Court Ex.P23-PM report and
injuries. The counsel also reiterated that accused No.1
purchased the chikki from the shop of PW12 and the evidence of
PW12 also corroborates the case of prosecution. The counsel
also brought to notice of this Court the PM report wherein a
reference is made while examining the dead body by the doctor
in respect of external appearance that eatable chewed gummy
material is present in between clinched teeth of right side of the
mouth. Evidence of eruption of permanent first molar, central
incisors and lateral incisors on all quadrants. Bluish discoloration
of finger named Beds are noted. Hence, it is clear that chikki was
given to the victim prior to committing the sexual act and
murdered and eatable chewed gummy material is present in
between clinched teeth of right side of the mouth and the same
53
establishes the case of the prosecution that before committing
the offences, given the chikki.
44. The counsel also in her arguments would vehemently
contend that though CCTV does not discloses that taking the
child from the place to the place of isolation, but the fact is that
accused persons were moving around in the said place. The
counsel also brought to notice that this Court that in between
the timings of 1 o'clock and 2.54, all these accused persons were
not outside the place where the CCTV covers and the offence
was committed in between the timings after 1 o'clock and before
1 o'clock, the child was also found, but thereafter child was not
found. Both child as well as these accused persons were not
found in these timings and CCTV camera very clearly discloses
the same.
45. The contention of the learned counsel appearing for
accused No.1 is that there was no any DNA against accused No.1
and blood group also only human blood origin 'B' group and also
contention of the accused No.1 counsel that penile swab
confirms that accused No.1 blood group is also a 'B' group and
54
the same cannot be accepted for the reason that when the
accused was examined by the doctor and doctor has not found
any injuries on accused No.1. When such being the evidence
available on record, the contention that accused blood group is
also 'B' group cannot be accepted. The accused No.1 has not
explained the circumstances with regard to the DNA report is
concerned as well as blood stains were found is also 'B' group
blood which belongs to the deceased. When there was no any
injury on accused No.1 and blood stains of the victim were found
in the cloth of the accused, very contention of the counsel
cannot be accepted.
46. The counsel appearing for the State brought to
notice of this Court the CCTV camera details that victim was
missing in between 1 o'clock to 2.56 and this time accused were
also not found and only after 2.56, the moment of the accused
was found. But not found the movement of the victim girl. The
counsel would vehemently contend that in Ex.P5, paragraphs 4
to 8, a discussion was made with regard to the seizure. The
counsel also would submit that the evidence of PW5 i.e., last
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seen evidence, corroborates the case of the prosecution. The
accused Nos.1 and 3 were first arrested and in the early morning
on 24th, accused Nos.2 and 4 were arrested at Putthur. The
counsel would submit that Ex.P64 and P62 i.e., Aadhar card and
birth certificate disclose that the victim was aged about 7 years
7 months. The counsel would vehemently contend that having
considered the material on record, it discloses that it is a case
for rarest of rare case and Court has to take note of the manner
in which she was subjected to sexual assault by three accused
persons who not only committed sexual assault even taken life
of the victim girl and the same was cruel in nature.
47. In reply to this argument, counsel appearing for the
accused No.1 would vehemently contend that in the judgment of
SHARAD BIRDICHAND SARDA referred supra, the Apex Court
discussed with regard to the circumstantial evidence is
concerned that chain link has to be established. But in the case
on hand, not established the chain link. The counsel brought to
notice of this Court paragraph 178 of the said judgment. The
counsel also would vehemently contend that for having given
56
chikki, there is no voluntary statement by accused No.1 and the
same is an improvement and the contention that the inquest was
marked with consent and the same will not take away the
defence of the accused and merely marking the same with
consent will not create any incriminating circumstances.
48. Having heard the appellant counsel in both the
appeals as well as Amicus Curiae representing the complainant
and also the counsel represented on behalf of the complainant in
connected appeal and also the contentions of the counsel
appearing for the State for confirmation of death sentence and
to uphold the conviction or acquittal, this Court has to consider
the principles laid down in the judgments referred supra and also
the factual aspects of the case. Having considered the same, the
points that arise for consideration of these cases are:
1. Whether the appellants in both the appeals
have made out the ground to set aside the
conviction for the offences invoked against
them and whether the Trial Court committed
an error in coming to the conclusion that the
prosecution has proved the case beyond
reasonable doubt?
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2. Whether the reference sent by the Trial Court
for the confirmation of death sentence requires
the confirmation of the same and whether it is
a case for confirming the death sentence or
substituting the other sentence considering the
material record if this Court comes to the
conclusion that conviction is sustainable in
law?
3. What order?
Point Nos.1 and 2:
49. Having considered the submissions of the respective
counsels and also the grounds urged in the appeal and also the
principles laid down in the judgment, this Court has to analyze
both oral and documentary evidence available on record. The
very charges levelled against accused persons are that accused
No.1 to 4 have conspired together on 20.11.2021 to commit
rape on the deceased minor girl by taking her to a secluded
place and on the next day, in furtherance of the said conspiracy
and common intention, procured the minor deceased victim for
the purpose of committing sexual assault when she was playing
within the premises of Raj Tiles factory and took her inside the
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brick burning kiln, room No.1 of the factory and accused No.4
was watching outside of the said room when accused Nos.1 to 3
were subjecting the victim girl for forceful sexual act even
though having the knowledge that the said girl is a minor. Thus,
it is an offence against the minor child having unnatural sexual
intercourse and committed the sexual act and in the process of
the same, took the life of the victim girl. In order to screen the
evidence of the offence, the accused persons shifted the dead
body of the deceased to another room and after watching the
movement of the general public, thrown the dead body of the
victim into a drainage beneath the stone slabs in a hind portion
of the Raj Tiles factory. This Court has to analyze both oral and
documentary evidence available on record to come to a correct
conclusion.
50. PW1 who is the mother of the victim girl stated that
PW22 is her husband and their origin is from Jharkhand State
and the victim is the first daughter of them. She also revealed
that they are also the employees of the Raj Tiles factory and
there were 25 to 30 persons working in the said factory. Accused
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Nos.1 to 3 are also working in the very same factory and having
acquaintance with each other. It is her evidence that 21.11.2021
was a Sunday and having holiday. All her children went to play
in the factory premises and other children came back at around
3 o'clock, but, the victim girl did not accompany them and other
children did not inform anything. Then PW1 started searching for
the daughter, but did not find her. Hence, she woke up her
husband and both of them searched, but did not find the victim
girl. However, later on they found the dead body of the victim
girl while searching in the drain below the slab and noticed the
injuries on her private part. It is also noticed that the dead body
was having only t-shirt on the body and inner wear was not
there. Considering the position of the dead body, PW1 analysed
that she was subjected to sexual act and then committed the
murder. Thus, immediately, herself and her husband went to the
police station and lodged the complaint in terms of Ex.P1. It is
the evidence of PW1 that accused Nos.1 to 3 were giving
chocolate and other snacks to the victim girl and they were
inappropriately touching her. When the same was noticed
earlier, both of them quarreled with the accused persons and
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hence, PW1 suspected the role of accused persons in the said
act. It is also her evidence that she found the inner wear near
the dead body at the distance and the same was seized by
drawing the mahazar and identifies the same. After accused
were apprehended, she went and identified them.
51. This witness was subjected to the cross-examination.
In the cross-examination, she deposed that she cannot tell the
distance of the factory premises and where the body was found
and the same was not visible from the rooms of the factory
premises. The accused was having acquaintance with her last
one year of this incident and also admits that when the police
called all other factory workers, these accused persons were not
there. On the same day, she came back from the police station
at around 7 o'clock and once again went to the police station. It
is elicited that some persons are known to the fact that accused
persons were giving chikki to her daughter but cannot tell the
name of the persons who knows the same. It is her evidence
that 3 weeks prior to this incident, quarrel was taken place
between them and accused Nos.1 to 3. It is suggested that she
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is falsely deposing that accused No.1 was giving chikki and the
said suggestion was denied. In the cross-examination by the
counsel for accused No.2, it is elicited that from their room, the
place of the dead body was not visible. It is suggested that
accused No.2 is no way connected to this crime and the said
suggestion was denied. So also, the similar cross examination
was made by the counsel for accused No.3 and the said
suggestion was also denied and the said counsel adopted the
cross examination of accused Nos.1 and 2.
52. In the cross examination made by the counsel
appearing for accused No.4, it is elicited that no watchman was
appointed in the factory and also admits that accused No.4 was
shown after 2 days of the incident. It is suggested that she did
not witness accused No.4 in the police station and the said
suggestion was denied. It is suggested that accused No.4 is no
way connected to this crime and the said suggestion also denied.
53. PW2 is the mahazar witness in respect of Ex.P2
wherein he identifies his signature as Ex.P2(a) - Spot mahazar.
In the cross-examination, it is elicited that T-shirt was found on
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the body of the girl and no inner wear, thereafter covered her
body by using the cloth. He made the statement before the
police that Dothi and other cloth was put on the body and also
admits that police took the factory workers at that time. The
counsel appearing for accused No.2 also elicited that at the time
of drawing the mahazar, people were there inside the factory.
The accused No.4 counsel suggested that police did not enquire
him and other persons with regard to that who and how many
children were playing and the same was denied.
54. PW3 in her evidence says that herself, her uncle and
the wife of her uncle were residing in the house of her uncle.
CW9 to 16 are neighbours of her uncle and having acquaintance
with CW1 and CW2. It is also her evidence that she is having
acquaintance with accused Nos.1 to 3 and they were working in
the same factory. PW1 was having 4 children and victim girl is
first daughter of PW1. It is her evidence that on 21.11.2021,
herself, CW11 to 14 were talking at around 5.30 and at that
time, CW1 and CW2 came and told that 4 children went to play
and only 3 of them came back and first daughter did not turn up.
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At that time, CW14 told that all the 4 were playing inside the
factory. CW12 also went inside the factory for searching and he
also went to accused Nos.1 to 3 to enquire about the same, but,
they were sleeping by consuming liquor and then, all of them
went for searching the child. PW1 came and told that body is
found near the drainage, then, immediately they went to the
spot and removed the same and found only t-shirt on the body
and innerwear was not found and there were injuries on the
mouth and also the private part, so also on the neck, chest
portion and also on the cheek. They brought the dead body and
put the cloth on it and immediately informed her uncle CW15
and he also came to the spot and thereafter police came to the
spot and drawn the mahazar on 22.11.2021 and she had signed
the said mahazar and police have seized the inner wear and also
collected the blood stains found at the spot and also seized 3
coins of Rs.5/-, chikki packet, plastic bag and identifies the same
as MO1 and MO2 and also identifies her signature. Having
noticed the position of the dead body, it found that she was
subjected to sexual act.
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55. It is elicited from the counsel for accused No.1 that
police who came to the factory premises took the male persons
who are residing in the factory premises and accused Nos.1 to 3
also went along with them. It is also her evidence that she had
informed the police that CW12 told that accused Nos.1 to 3 had
consumed alcohol and they were inside their room. It is also her
evidence that when she gave statement to the police on
22.11.2021, at that time, accused persons were there in the
police station. It is suggested that in her presence, not seized
any article and the same was denied.
56. The counsel appearing for accused No.2 elicited that
inside the factory premises, there are CCTVs and when they
asked to see the CCTV, factory owner denied the same. The
factory is at the distance of 15 to 20 feet from her house. It is
suggested that similar type of MO1 coins even outside the
factory premises also could be available and witness says that
these coins were seized by the police at the spot. It is suggested
that MO1 and MO2 are not seized and the same was denied. A
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suggestion was made that she was not present at the spot and
the same was also denied.
57. The counsel appearing for accused No.4 elicited that
she had read the contents of the mahazar and then signed the
same and police took the photographs. It is suggested that she
is deposing falsely before the Court and the same was denied. In
further examination by Public Prosecutor, the witness says that
near the place where the body was found, there is no CCTV.
58. PW4 in his evidence, says that he is also the resident
of factory premises and the workers of the factory were almost
outsiders and CW1 and CW2 are also working in the very same
factory and staying in the accommodation provided to them.
Accused Nos.1 to 3 are also working in the factory and they are
staying in the room. Accused No.4 was working at Putturu. The
victim was the first daughter of the PW1 and PW22. It is his
evidence that on 21.11.2021 at around 5.30, he himself, CW10
and CW11 were talking near their house and CW1 and CW2
came and informed that their elder daughter has not returned to
the home and then they started searching. Accused Nos.1 to 4,
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after consuming the alcohol, were sleeping in their respective
rooms. CW9 screamed and called them and all of them went and
found the dead body of the victim girl near the drainage and also
found the injuries on her private part, face and chest and all
over the body and found only the T-shirt and not found the inner
wear. Thereafter, he himself and CW1 and CW2 went to police
station.
59. This witness was subjected to the cross examination.
In the cross examination, the counsel for accused No.1 elicited
that he went and verified the room of accused and also nearby
the said room and when he went to call the accused persons to
search the child, inspite of his efforts to wake up them, they did
not wake up. The police came to the spot and took the factory
employees and he gave the statement on 22.11.2021 when the
police came near the factory. The counsel for accused No.2
suggested that on that day, he was not at the spot and the same
was denied. The suggestion was made that he is falsely deposing
that when he tried to wake up the accused persons, they did not
wake up and said suggestion was denied. He admits when the
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cross-examination was made by the counsel for accused No.4
that police had informed that accused No.4 was working at
Putturu. The Court also put the question that how accused No.4
came to the factory premises and the witness says that accused
No.3 called accused No.4 and he says that he did not make the
statement that accused No.4 was working at Putturu with regard
to the areca nut work. He says that he did not make the
statement before the police that accused No.3 called accused
No.4, but he says that accused Nos.1 to A3 and accused No.4
had consumed alcohol and sleeping. It is suggested that for the
first time, he is deposing the same and the same was denied. It
is suggested that he was not aware of the occupation of accused
No.4 as what work he is doing and the said suggestion was
denied.
60. PW5, in her evidence says that CW13 is her mother
and CW15 is her husband and having a daughter and all of them
are residing in the Raj Tiles factory rented premises. The factory
is located at the distance of 20 feet. She deposed that she is
having acquaintance with PW1 and PW22 and also with their
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children. She also stated that PW1 and her husband are also
working in the said factory and they are having 4 children and
the victim is aged about 8 years who is the elder daughter of
PW1 and PW22 and all of them were playing along with her
daughter. She also stated that she also having acquaintance with
accused Nos.1 to 3 and they are also working in the said factory
and also staying in the room.
61. PW5 further deposed that that on, 21.11.2021, at
around 12.45, she gave food to her daughter and her daughter
claims that she wants to play with victim girl. Hence, she took
her daughter to the victim girl wherein her sister and brother
were playing and made her daughter to play along with them.
The accused Nos.1 to 3 came to the spot consuming alcohol and
they started dancing taking victim girl and also her brother on
their shoulder. Hence, she brought her daughter back to home.
At around 5.30, when she was talking along with PW4 with her
mother and PW3, PW9 and CW11, PW1 and PW22 came and
informed that her elder daughter did not turn up to home and
enquired her and she informed about the very act of accused
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Nos.1 to 3. PW4 also went to verify with the accused persons
and all of them also started to search. PW4 came and informed
that all accused persons were sleeping under the influence of
alcohol and he made an attempt to wake up them, but they did
not wake up. Thereafter, they noticed the inner wear of the
victim girl and also heard the screaming sound and immediately
all of them went and found the dead body of the victim girl and
they also found injuries on the mouth and also on the chest and
near the eyes. They also found only T-shirt on the body and no
innerwear and having noticed the same, PW5 fainted. It is also
her evidence that along with accused Nos.1 to 3, one more
person was there and she identifies all the accused persons.
62. This witness was subjected to the cross-examination.
In the cross-examination by the counsel for accused No.1, it is
elicited that her daughter was playing inside the factory
premises. Having taken note of the sketch she cannot identify
the place and also says that she went to police station on
23.11.2021 and she did not notice the accused persons. It is
suggested that having come to know that accused Nos.1 to 3
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arrested, she falsely deposing that she found the accused
persons playing with victim girl and also her brother and the said
suggestion was denied.
63. In the cross-examination by the counsel for accused
No.2, it is elicited that Raj Tiles factory is having CCTV. But
witness says that the same is in the entry only and the persons
who are coming and going to the factory will be found. It is
suggested that the place where the children were playing was
also visible in the CCTV and the same was denied. The counsel
for accused No.3 also suggested that she did not inform PW1's
children to go to house and she did not say but was there for 15
minutes along with her child. It is suggested that accused No.3
is no way connected to the incident and the same was denied.
The counsel appearing for the accused No.4 put the question
that when accused Nos.1 to 3 were dancing with the victim girl,
whether the same was informed to PW1 when she came and
enquired her and replied that the same was informed. It is also
her evidence that she was not having any acquaintance with
another accused, hence she did not inform about other person.
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It is suggested that 4 persons were not present at the spot and
hence, the same was not informed to the police and the said
suggestion was denied. It is suggested that accused No.4 had
not accompanied along with other accused and the same was
denied. It is suggested that she is deposing falsely before the
Court as someone else told her and the same was denied. A
suggestion was made in respect of the presence of the accused
No.4 that she did not inform PW1 and the said suggestion was
denied. It is suggested that she is falsely deposing that at
around 12.45, she took her daughter to the premises to play
along with PW1's children and said suggestion was denied. It is
her evidence that when the police called and questioned her, she
informed the same to the police. It is suggested that she is
falsely deposing that accused No.4 also present and was not
connected to this incident and the same was denied.
64. P.W.6 is the witness for recovery of cloth. In his
evidence, he says that he is having acquaintance with P.W.1, her
husband and also their children. That on 21.11.2021, when he
was proceeding towards the bridge, his brother's daughter i.e.,
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P.W.3 called and informed him that P.W.1's daughter was
subjected to rape. Immediately he rushed to the spot and found
the dead body in the drainage. P.W.1 and others were also
present. He found T-shirt on the dead body and no inner wear
and found the injuries on her right side cheek as well as injuries
on her private part. Hence, he suspected that she was raped and
murdered. He himself took P.W.1, her husband, C.W.4 and
C.W.5 to the police station and informed the police and P.W.1
lodged the complaint. That on 25.11.2021, police called him to
the police station and C.W.16 was also along with him.
Thereafter, all the four accused persons took them to Raj Tiles
Factory. First they took them to the room of accused No.3 and
he had produced the cloth, which he was wearing on the
particular date i.e., T-shirt and innerwear. The accused No.1
took them to his room No.3 and he also produced his cloth. He
found chikki and empty arrack packet and the same was seized
and mahazar was drawn in terms of Ex.P.6 and he identifies his
signature as Ex.P.6(a). He also signed the mahazar Ex.P.7 and
identified his signature as Ex.P.7(a) and so also he had signed
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the mahazar Ex.P.8 regarding clothes, which have been received
from the hospital.
65. This witness was subjected to cross-examination. In
the cross-examination by accused No.1 counsel, he says that
police, accused and other panchas came to the factory in police
jeep. A suggestion was made that none of the accused have
showed the spot and also accused did not take him and police to
their room and he is deposing falsely before the Court and the
said suggestion was denied. It is also suggested that in his
presence, police have not seized any article belonging to the
accused and the same was denied. However, he says that he
cannot tell the colour of the cloth, which was seized and also
cannot tell the cloth belongs to which accused.
66. The accused No.2 counsel also cross-examined this
witness. Similar suggestion was made that the accused did not
take him and the police to any of the room and also to the
particular place and he had signed Exs.P.6 and 7 in the police
station and the same was denied. However, he admits that he is
doing sand business and hence, having touch with the police.
74
67. The accused No.4 counsel also cross-examined this
witness and a suggestion was made that he did not read the
contents of the mahazar. But the witness says that after police
explained the contents, he had signed the same. He also says
that police while conducting the mahazar took the photographs.
It is suggested that he is falsely deposing before the Court and
the same was denied. He says that when the police seized the
clothes, which were received from the hospital, at that time he is
also found in the photograph. It is suggested that accused No.4
was not present at the time of seizure and the same was denied.
68. This witness was further examined by the
prosecution. In the further chief evidence, he identifies the cloth
of accused Nos.3 and 1 as M.O.22 to M.O.24 and M.O.25 to
M.O.27, respectively and also seizure of chikki from the house of
accused No.1 i.e., M.O.29. This witness was further cross-
examined that he cannot identify the cloth and the same is
deposed earlier and the said suggestion was denied.
69. P.W.7 is the witness to recovery of cloth of accused
Nos.2 and 4. He deposes that on 27.11.2011, he himself and
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C.W.18 were called to the police station. Both the accused took
them to their place of residence and accused No.2 produced blue
colour pant, shirt and innerwear that he was wearing at the time
of the incident. Accused No.4 also produced pant, shirt, jacket
and innerwear. The same was seized by drawing the mahazar in
terms of Ex.P.9 and he himself and C.W.18 signed the same. He
also identifies the photographs and says accused Nos.2 and 4
producing of cloth is also found in the photograph and the very
presence of C.W.18 also discloses the same in those
photographs. The photograph is marked as Ex.P.10. He says
that photograph clearly depicts that accused Nos.2 and 4 took
them and photographs Exs.P.11 to 14 are marked.
70. The accused No.2 counsel cross-examined this
witness and answer is elicited that surrounding the said house,
other houses are also located. He also says that outside the said
outhouse, there were three rooms. The witness was suggested
that he had signed the mahazar in the police station and he
admitted the same, but he volunteers that clothes are seized
and sealed in the place, where it was seized. It is suggested that
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accused Nos.2 and 4 have not led them to the spot and not
seized any cloth and the same was denied.
71. The accused No.4 counsel also got elicited the
answer that he cannot tell the exact time of visiting the spot and
also cannot tell the police van number. He admits that he is
seeing Exs.P11 to 14 for the first time. This witness was also
further examined and in respect of cloth of accused No.2,
M.O.38 to M.O.40 are marked and so also in respect of accused
No.4. M.O.42 to M.O.45 are marked and he identifies the cloth.
Accused No.2 counsel put the suggestion that in the earlier
evidence he has deposed that he cannot identify the cloth and
the same was denied.
72. P.W.8 is the witness with regard to the recovery of
mobile from accused Nos.1 and 3. In his evidence, he says that
accused Nos.1 and 3 took them to their house where they were
residing in the accommodation provided by the factory. He says
that he was called to the police station on 21.11.2021 and
23.11.2021. It is also his evidence that accused Nos.1 and 3
were found in the police station. It is also his evidence that two
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mobile phones were seized from the accused persons and he had
signed the mahazar i.e., Ex.P.15 and identifies his signature as
Ex.P.15(a). Out of two mobiles, one is from Vivo company and
another mobile company he cannot remember. It is also his
evidence that on 24.11.2011 also he was called to the police
station and by that time, along with accused Nos.1 to 3, accused
No.4 was also present in the police station and two mobile
phones were seized. He cannot tell the name of particular
accused, but identifies his signature as Ex.P.16(a) and phones
are marked as M.O.3 and M.O.4 and other two phones are
marked as M.O.5 and M.O.6.
73. In the cross-examination, accused No.1 counsel got
elicited that all male persons who are working in the factory
were taken to the police station and he cannot tell the contents
of Exs.P.15 and 16. It is suggested that he is falsely deposing
that M.O.3 to M.O.6 were seized by the police from the accused
and the said suggestion was denied.
74. The accused No.3 counsel got elicited the answer
that he is staying at a distance of 2 kilometres from the factory
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and the factory owner called him at around 7.30 p.m. and
informed him about the incident and then he came to the
factory. It is suggested that no incident was taken place inside
the factory and the same was denied.
75. P.W.9 is also a recovery witness of accused Nos.2
and 4. In his evidence he says that accused No.2 and 4 were
working in his arecanut garden and accused No.2 left the job
after some time. He says that police came to him that accused
Nos.2 and 4 were involved in rape and murder case. He had
shown the room in which they were residing and the police took
them to their custody. Again on 27.11.2021, the police brought
both the accused and both of them produced their clothes. He is
one of the signatory to the document Ex.P.9 seizure mahazar
and he identifies Ex.P.10 photograph and accused Nos.2 and 4
are in the said photograph.
76. The accused No.2 counsel cross-examined this
witness. He admits that accused No.2 came back to the house
two days back and was staying along with accused No.4. It is
suggested that cloth belonging to accused No.2 were not there in
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the house and the same was denied. It is suggested that
accused Nos.2 and 4 have not worked with him and the said
suggestion was denied.
77. The accused No.4 counsel also cross-examined this
witness and he says that Sunday is holiday to the workers.
However, daily 2 to 3 persons were working. He says that if any
other persons comes to the outhouse, it will come to his
knowledge. That on 23.11.2021, when the police came, he was
in the house. It is his evidence that on 23.11.2021, during
daytime, accused No.4 worked with him. It is suggested that
accused No.4 was not arrested on that day and the same was
denied. That on 27.11.2021, both the accused came along with
police and both of them went inside the room at the first
instance.
78. P.W.10 is the businessman and he says that they
have provided residential accommodation to the workers, who
are from outside the State. Among them P.W.1 and P.W.22 were
also working in the factory. Accused Nos.1 to 3 who are present
before the Court were also working in their factory. He came to
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know about the incident on 21.11.2021 and immediately he had
been to the place of occurrence. The police asked him with
regard to the ownership, names and details of the neighbours
and he complied with the requirement of the police. He identifies
the notice given to him by the police, which is marked as
Ex.P.17. It is also his evidence that he has furnished copies of
certain documents to the police along with a covering letter and
the same is marked as Ex.P.18. That on 22.11.2021, the police
came to his factory and inspected the CCTV footage and they
have collected the footage after getting downloaded it to a DVR
and pendrives by drawing the mahazar in terms of Ex.P.19 and
his signature is also found and marked as Ex.P.19(a). This
witness was not subjected to cross-examination.
79. P.W.11 in his evidence says that they have installed
the CCTV camera to the Raj Tiles factory in 2018-19 and he
himself is maintaining the same. That on 21.11.2021, at around
7.00 p.m., he was called to Raj Tiles factory and he downloaded
the backup of the footage from 10.00 a.m. to 6.00 p.m. and also
put the same to the pendrive and also given the DVR and he has
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given the certificate. It is also his evidence that mahazar was
drawn to that effect in terms of Ex.P.19 and his signature is also
marked and he gave the certificate, which is marked as Ex.P.20.
The DVR and pendrive were packed and sealed he identifies the
pendrive and DVR as M.O.7 and M.O.8. The DVR and pendrive
were also played before the Court, which is already marked as
M.O.8.
80. This witness was subjected to cross-examination. In
the cross-examination, he says that after the spot mahazar,
police got the footage and got downloaded the same. It is his
evidence that Ex.P.19 was typed in police station. It is suggested
that M.O.8 is created and the same was denied.
81. P.W.12 is the person, who sold the chikki to accused
No.1. He says that P.W.1 and C.W.2 daughter are also
customers of his shop. He says that accused No.1 was working in
factory and he is also his shop customer. It is his evidence that
on 21.11.2021, accused No.1 came to his shop and purchased
the chikki and on the same day, he came to know that daughter
of C.W.1 and C.W.2 was murdered. In the cross-examination, it
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is elicited that the employees of the factory used to come and
purchase the things from his shop. This accused was also a
customer of his shop. He used to sell chikki based on demand.
He admits that even others also used to purchase chikki from his
shop. It is also his evidence that he purchased chikki not only on
21.11.2021, but on other days also he had purchased the same.
82. P.W.13 is the Scientific Officer, RFSL, Mangaluru. In
his evidence he says that on opening article No.1, it contained a
preservative which was marked by Investigating Officer as 4A.
On opening article No.2, it was air dried blood soap blotted filter
paper, which was marked by Investigating Officer as U. On
opening article No.3, it was nail clippings, which was marked by
Investigating Officer as W1. On opening article No. 4, it was
pubic hairs, which was marked by Investigating Officer as W2.
On opening article No.5, it was penile swab, which was marked
by Investigating Officer as W3. On opening article No.6, it was
nail clippings, which was marked by Investigating Officer as XI.
On opening article No.7, it was pubic hairs which was marked by
Investigating Officer as X2. On opening article No.8 it was penile
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swab marked as X3 by Investigating Officer. On opening article
No.9, it was nail clippings marked as Y1. On opening article
No.10, it was penile swab marked as Y2. Article No.11 was
penile swab marked as Y3. Article No.12 was nail clipping
marked as Z1. Article No.13 was pubic hairs marked as Z2 and
article No.14 was penile swab marked as Z3. It is his evidence
that he examined the articles for blood stains using benzidine
and phenolphthalein test as primary test and further confirmed
by conducting Takayama Crystal test. He conducted test for
seminal stains using Florence test and Acid Phosphatase test.
He has conducted Haematoxyline - Eosin test for Spermatozoa.
He has conducted test for skin tissues by taking scrapings on
slide and he has done miscroscopic observation by staining with
Haemotoxyline and Eosin. By conducting the above tests, he
detected the blood in article Nos.U, W3, X3, Y3, and Z3, which
were of human origin and of 'B' blood group. Seminal stains
were not detected in article Nos.W1, W2, W3, X1, X2, X3, Y1,
Y2, Y3, Z1, Z2 and Z3. Skin tissues were not detected in article
Nos.W1, X1, Y1 and Z1. After examination, he issued a test
report on 16.12.2021 along with specimen seal. He identifies the
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report as Ex.P.21 and his signature as Ex.P.21(a). The specimen
seal is marked as Ex.P.22 and his signature is marked as
Ex.P.22(a).
83. This witness was subjected to cross-examination. In
the cross-examination by accused No.1 counsel, it is elicited that
blood group can be determined from body fluid. Penile swab
contains body fluid. If a penile swab is collected from the person
having 'B' blood group, his swab also shows 'B' blood group. The
safest period to collect penile swab to ascertain blood group
depends upon the body hygiene of the person.
84. The accused No.2 counsel also cross-examined this
witness. A suggestion was made that he did not conduct any test
and without conducting any tests, he has issued a false report
and the same was denied. The accused Nos.3 and 4 counsel
adopt the cross-examination of accused Nos.1 and 2 counsel.
85. P.W.14 is the Associate Professor working in Forensic
Medicine Division, KMC Hospital, Mangaluru. His evidence is that
on 22.11.2021, he and C.W.29 Dr. Rashmi K.S. received
requisition from Mangaluru Rural Police Station to conduct
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autopsy on the dead body of the victim girl and hence, they
conducted the autopsy and procedure of autopsy was
videographed by a local videographer. He says that on external
examination, it was the body of a girl child weighing 32 kgs. and
the body was preserved in cold chamber. The face was swollen
and congested. It is his evidence that white frothy discharge was
seen at left nostrils. Eatable chewed gummy materials was
present in between clinched teeth of right side of the mouth.
There was evidence of eruption of permanent first molar, central
incisors and lateral incisors on all quadrants. The external
injuries noted are as follows:
a. Diffuse swelling seen over forehead.
b. Abrasion of 2.5 x 1.5 cm seen over center of
forehead.
c. Contusions of 4 x 1 cm present over mucosal
surface of upper lip and 3 x 1 cm seen over lower
lip.
d. abrasion of 2 x 1 cm seen lateral to outer canthus
of left eye.
e. Abrasion of 1 x 0.5 cm seen 1 cm below the
injury No.'d'.
f. linear abrasion of 1 cm below the injury No.'e' on
the upper part of left cheek.
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g. Abrasion of 2 x 1 cm seen on the lateral part of
left cheek 3 cm away from tragus of left ear.
h. Abrasion of 1 x 1 cm seen over post auricular
area of right ear.
i. Abrasion of 1 x 1 cm seen over lateral aspect of
right side of neck, 6 cm below right ear lobule.
j. Multiple abrasions present over an area of 4 x 5
cm present over front part of neck away midline
ranging from 0.5 x 0.5 cm to 3 x 0.5 cm on left
side of neck, situated 7 cm above suprasternal
notch and 4 cm below the chin.
k. Abrasion of 1 x 0.5 cm seen over suprasternal
notch.
l. Graze abrasion of 3 x 2 cm outer aspect of left
elbow Joint.
m. Linear abrasion of 2 x 0.2 cm placed vertically
over medial aspect of left ankle joint
n. Obliquely placed abrasion of 6 x 0.2 cm seen over
anterolateral aspect of lower part of right leg.
o. Multiple abrasions seen over an area of 3 x 2 cm
on dorsum of right foot ranging from 0.5 cm to 1
x 1 cm.
p. Abrasion of 2 x 1 cm seen along mid line over
lower part of nape of neck.
All the above injuries are ante mortem and fresh
in nature.
86. With regard to abdomen is concerned, he says that
mouth injuries were described in paragraph No.5(c). Stomach
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and its contents weighed 506 grams and contained 250 grams of
undigested food particles mixed with black colour powder
particles with no characteristic odor. The preliminary opinion of
the doctor is that the deceased died due to asphyxia as a result
of compression of neck structures by hand secondary to
throttling (manual strangulation) following forceful penetrative
sexual act. He issued the final opinion after receiving the report
in terms of Ex.P.23. The findings of the DNA profiling issued by
State FSL, Madivala, Bengaluru was taken note of wherein, it
was detected on item No.41 (blood stains on the filter paper).
DNA profile result of seminal stains detected on item No.52
(underwear of Muneem Singh) is identical and matching with
DNA profile result of Muneem Singh and Smt. Geetha Bai,
sample blood scent of item No.56. Y - Chromosomal DNA profile
results of the seminal stains detected on item Nos.32 and 39
(Vulval swab and dried smear slides of vaginal swabs) are
identical and matching with Y - Chromosomal DNA profile result
of Mukesh Singh i.e., sample sent in item No.54. Based on the
autopsy findings, chemical examiners report, DNA profiling
report issued by the SFSL and Histopathological report, opined
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that the deceased died due to asphyxia as a result of
compression of neck structures by hand secondary to throttling
(manual strangulation) following forceful penetrative sexual act
and issued the final opinion to the Investigating Officer as per
Ex.P.24 and identifies his signature as Ex.P.24(a).
87. The accused No.1 counsel says no cross-
examination. Accused No.2 counsel suggested the witness that
he has not collected any swab from the dead body and the same
was denied. The accused No.3 counsel says no cross-
examination and the accused No.4 counsel suggested that the
presence of seminal stains in one's own underwear is normal and
the same is admitted.
88. P.W.15- Sri Vishwavijetha S.K is the Doctor. In his
evidence, he says that he has received requisition from the Court
on 10.12.2021 seeking assistance for collection of blood samples
of accused persons for the purpose of DNA analysis. On
13.12.2021 at 04.00 p.m., he reached the Court along with staff
and the accused persons were also present and collected 3 ml.
each blood samples in a vaccutainer from accused Nos.1 to 4
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and then, sealed it separately and handed over the same to the
Investigating Officer in the presence of Hon'ble Magistrate. At
the time of collection of blood samples, Identification Forms of
each accused persons were prepared and affixed signature in all
the Identification Forms and attested the photographs of each
accused persons. The witness also identifies the form of accused
Nos.1 to 4 which are marked as Exs.P29 to P32 with respective
signatures as Exs.29(a), 30(a), 31(a) and 32(a). The accused
No.1 counsel says no cross. The accused No.2 counsel suggested
that if the blood is preserved with preservatives, there is no time
limit for conducting the examination. It is suggested that no
blood samples were collected from accused No.2 and the same
was denied. The counsel for accused Nos.3 and 4 says no cross-
examination.
89. P.W.16 is the Doctor, who is a Senior Specialist. In
her evidence, she says that she has examined the accused-
Manish Tirki and his secondary sexual characters were well
developed. On local examination, the penis was found normal.
Foreskin was circumcised. Scrotum found pendulous. Both the
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testis was present and were adult size. Sensational reflex were
normal, there were no injuries deformity or disease noted. It is
also her evidence that she collected nail clipping, pubic hair,
penal swab and blood for grouping. The samples were sealed for
RFSL analysis and given opinion that there is nothing to suggest
that above person is incapable of performing sexual act and
issued the certificate in terms of Ex.P33. In respect of other
accused-Mukesh Sing, similar tests were conducted and
certificate was issued in terms of Ex.P34. In respect of accused
No.1-Jayban Adivasi @ Jaya Singh, same tests are conducted,
collected the samples and issued the certificate in terms of
Ex.P35. So also in respect of other accused-Muneem Singh,
issued the certificate in terms of Ex.P36 and respective counsel
submits that no cross-examination.
90. P.W.17 is the Assistant Executive Engineer, who
prepared the spot sketch and the same is marked as Ex.P37 and
this witness was not cross-examined.
91. P.W.18 is the Sub-inspector of Police, who receives
the complaint on 21.11.2021 at 7.00 p.m. She deposes that
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C.Ws.1 and 2 appeared and made the statement in Hindi and got
translated the same to Kannada and invoked the offences under
Sections 376 and 302 of IPC and Sections 5 and 6 of POCSO and
issued the FIR. The complaint and FIR are marked as Ex.P1 and
Ex.P4 and her signature is identified. No cross-examination on
the evidence of P.W.18.
92. P.W.19 in his evidence says that he was part of spot
mahazar and recovery of clothes of accused Nos.1 and 3 and
also recovery of clothes of accused Nos. 2 and 4. He also states
that he took out photographs of these process and given the
certificate in terms of Ex.P38 under Section 65(B) of the
Evidence Act. The photographs are also marked as Exs.P10 to
P14. In respect of recovery of accused Nos.1 and 3, the
document is marked as Ex.P39, photographs and DVD as
Exs.P40, P41 and P42. It is also his evidence that having
produced CCTV clippings, DVR and pen drive, a mahazar was
drawn in terms of Ex.P19 and he also signed the same and his
signature is marked as Ex.P19(c). In the cross-examination,
suggestion was made that when the accused persons were there
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in the custody, they were taken to different places and photos
were taken and mahazar was not drawn in the spot and the
same was prepared in the police station and no articles were
seized. These suggestions were made by accused No.1 counsel
and the same was denied. The accused No.4 also made similar
suggestions and the same was denied. The counsel for accused
Nos.2 and 3 also adopted the same.
93. P.W.20 in his evidence says that he had received a
call from C.W.46 and informed about complaint lodged by C.W1.
Having registered the case, appointed two staffs and sent them
to the spot and directed to protect the scene of offence. It is also
his evidence that he immediately visited the spot and found the
dead body and on the dead body, only T-shirt was there, below
the waist, there were no clothes. It is also his evidence, he
reached the spot at 8.15 p.m. and found the injuries on the
private part as well as near left ear, left cheek, neck and scratch
marks on the chest. He found C.W.2, C.W.15 and C.W.16 at the
spot. The dead body was in the drainage and the same was
removed and in the scene of occurrence, found the blood stains.
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He also found an innerwear at the distance of 20 feet from the
spot and came to know that the same belongs to the victim.
Having noticed the dead body and there was commotion by the
public, shifted the body to Wenlock Hospital and protected the
scene of crime to get the FSL people and mahazar was drawn on
the same day between 8.15 to 9.00 p.m. in the presence of
panchas and the same is marked as Ex.P2. He also requested
RFSL people to come to the spot and also request was made to
provide CCTV footages from 10.00 a.m. to 6.00 p.m. and
directed to produce DVR and recorded the statement of C.W.4
and C.W.5. That on 22.11.2021, conducted inquest in the
presence of panch witnesses and drawn the mahazar in terms of
Ex.P3. RFSL Experts came to the spot and mahazar was drawn in
terms of Ex.P5 and also found innerwear and the same was
seized, sealed and identified as M.O.9 and signature is also
identified. C.W.9 had shown the place of incident and RFSL
Expert inspected the spot and found the dead body and blood
stains and the same was seized. The RFSL Expert also seized
three coins of Rs.5/- denomination and a plastic material by
drawing the mahazar in terms of Ex.P5 and identified the same
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as M.O.1 and M.O.2 and signatures as M.O.1(b) and M.O.2(b).
The RFSL Expert also collected blood stains and the same was
sealed and packed.
94. In the further chief evidence, identifies the report
Ex.P43. The RFSL people collected the blood stains from all the
four angles and the same was seized and identified as M.O.10 to
M.O.21 and their respective signatures are also marked and
recorded the statement of C.W.6 to C.W.12 and C.W.36 to
C.W.38. He says that CCTV camera, DVR and pen drive are
produced before him and mahazar was drawn in terms of
Ex.P19. He also collected the certificate in terms of Ex.P20 under
Section 65(B) of Evidence Act and collected details of movement
and directed to get the assistance of C.W.24 to identify the
persons, who are moving and recorded the further statement of
C.W.1 and pen-drive and DVR were subjected to PF. It is also his
evidence that on 22.11.2021, C.W.45 gave the report in terms of
Ex.P44 and recorded the statement of C.W.24, C.W.13 and
C.W.14 and suspected that people, who are working in the
factory itself have committed the offence. It is also his evidence
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that, it has emerged that victim girl was found at 1.00 p.m. and
accused Nos.1 to 4 were playing along with her and the same
came to his knowledge during investigation and the same was
witnessed by C.W.14 and also came to know that earlier accused
Nos.1 to 3 misbehaved with the child. On perusal of CCTV
clippings, it is seen that accused Nos.1 to 3 and other two
persons were entering inside the factory and their mobile
location was also found and directed C.W.21 to produce accused
Nos.1 to 3 and the other 2 persons, who are found in the CCTV
clippings. Accused Nos.1 and 3 were brought to the police
station on 23.07.2021 and recorded their voluntary statements,
since they admitted the guilt and arrest procedure was also
done.
95. It is also his evidence that by drawing mahazar in
terms of Ex.P15, mobile phones of accused Nos.1 and 3 were
seized i.e., M.O.3 and M.O.4 and subjected to PF. The accused
Nos.1 and 3 in their voluntary statement have stated that they
will produce the clothes, if they accompany them and the said
portion in the voluntary statements are marked as Ex.P45 and
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Ex.P46. It is also his evidence that he requested to prepare the
sketch and came to know that accused Nos.2 and 4 went to
Puttur after committing the offence and hence, collected the
details and sent the police personnel and apprehended and
produced both of them by giving report in terms of Ex.P47. He
identifies accused Nos.2 and 4 and says that he seized the
mobile phones of accused by drawing mahazar in terms of
Ex.P16 and identified the same as M.O.5 and M.O.6 and the
same were subjected to PF. On the same day, he recorded the
statement of C.W.22. It is his evidence that accused Nos.2 and 4
gave voluntary statement and stated that, if they are taken to
the spot where they have kept the clothes, they will produce the
same and the said portion of voluntary statements are marked
as Ex.P48 and Ex.P49. It is also his evidence that accused were
produced before the Doctor for examination and received the
report in terms of Exs.P33, P34, P35 and P36 and accused
persons were taken to police custody. It is also his evidence that
in the presence of C.Ws.15 and 16, accused persons were taken
to the spot and mahazar was drawn in terms of Ex.P6. It is also
the evidence of witness that accused No.3 led them to his room
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and produced pant, shirt and innerwear and the same are seized
and marked as M.O.22 to M.O.24 and respective signatures are
also marked. Accused No.1 also took them to his room and
produced pant, shirt and innerwear and the same are marked as
M.O.25 to M.O.28 and it is the evidence of the witness that
accused No.1 also produced chikki and the same is marked by
drawing the mahazar in terms of Ex.P6 and subjected to PF. It
also the evidence that at the time of inquest, seized some
articles and the same is produced and mahazar was drawn in
terms of Ex.P8 and samples 1 to 7 and 13 were packed and
identified the same as M.O.30.
96. It is also the evidence of P.W.20 that on the basis of
statement of C.W.40, samples were sealed and packed and
identifies the same as M.Os.30, 31, 32, 33, 34, 35, 36 and 37
and they were subjected to PF. It is his further evidence that he
has sent sealed articles to the RFSL and recorded statement of
C.Ws.15, 16, 39 and 40 and for collecting blood samples, a
request was made to the Court and also collected the inquest
report and employer was given instructions to give details and
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recorded the statement of C.Ws.21, 25 and 26 and also received
the information given by C.W.21 which is marked as Ex.P18.
That on 27.11.2021, accused Nos.2 and 4 in terms of their
voluntary statement led them to their room in the presence of
C.W.17 and C.W.18 and produced their clothes and two hairs
which were seized and packed, including blue colour jeans pant,
brown colour innerwear and identified the same as M.Os.38 to
41. The accused No.4 also produced blue colour jeans pant, red
colour shirt, blue colour jacket and brown colour innerwear, the
same are seized, packed and identified the same as M.Os.40 to
45 and also says that photos were taken during the said seizure
and produced Ex.P10-photo and witness also signed mahazar
Ex.P9 and says that certificate is obtained from the concerned
under Section 65(B) in respect of Ex.P38 and also recorded the
statement owner of the house of accused Nos.2 and 4. That on
30.11.2021, blood samples of accused Nos.1 to 4 were collected
with the permission of the Court and the same was seized and
sent to FSL and acknowledgement is produced as Ex.P50. It is
also his evidence that he collected the documents in respect of
factory on 02.12.2021 by issuing notice and the same are
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marked as Exs.P51 and P52 and also identifies Exs.P53 and P54.
It is his evidence that on 03.12.2021, collected the medical
report from the police as per Exs.P33 to P36. That on
04.12.2021, he has sent the seized articles to the RFSL through
C.W.42. It is his evidence that on 08.12.2021, to record the
evidence of C.W.3, sent his staff to Children Welfare Committee.
That on 13.12.2021, accused Nos.1 to 4 were produced before
the Court and in the presence of Magistrate, blood samples were
collected and the same was sent to the FSL for DNA test which
are marked as Exs.P55 to P60. It is also his evidence that on
21.12.2021, he has received the report from the RFSL and also
the samples. That on 23.12.2021, accused Nos.1 to 4 blood
sample reports in terms of Exs.P25 to P28 are received and got
the sketch in terms of Ex.P37 from C.W.35 and subject to the
DNA report, charge sheet was filed. It is also his evidence that
he has requested to furnish the details of age of the victim girl
and received the document in terms of Exs.P62 and P64. He also
received the RFSL report in terms of Exs.P65 and P66.
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97. This witness was subjected to cross-examination. In
the cross-examination, he admits that, in order to enter the
factory, there are two gates and one small gate. He also admits
that there is no security guard in the gate. He also admits that
CCTV is found in 8 places and the same is not disclosed in the
sketch. He also admits that there were 39 workers, out of which
25 are the employees residing in the said premises. He admits
that in the complaint, at the first instance, not suspected the role
of anyone and for the first time, he suspected the role of
accused No.1 on 22.11.2021. It is suggested that in the CCTV,
movement of accused No.1 was not found and the same was
denied. It is suggested that he is falsely deposing that accused
No.1 was found in the place where the children were playing and
the said suggestion was denied. It is suggested that accused
No.1 has not given any voluntary statement and M.Os.25 to 29
are not shown by him and the same was denied. The accused
No.2 counsel also cross-examined this witness. He admits that
when he found 5 persons in CCTV along with accused Nos.1 to 3
and in respect of other 2, he did not make any enquiry. He
admits that he has not given any notice to the owner of
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premises, wherein accused Nos.2 and 4 were apprehended. It is
suggested that he has not recorded the voluntary statement and
also not drawn the mahazar and the same was denied. The
accused No.3 counsel also put similar questions in the cross-
examination and the same was denied and so also, it is
suggested that accused No.3 has not given any voluntary
statement in terms of Ex.P46 and also not produced any M.Os.
and the same was denied. Similar question was asked by
accused No.4 counsel and he admits that he examined Mohan of
Madhya Pradesh and another person from Jharkhand, who is
aged about 32-33 years in respect of this case. It is suggested
that due to political pressure, he implicated accused Nos.2 and 4
and they were not arrested and the said suggestion was denied.
98. P.W.21 is the brother of the victim. In his evidence,
he says that the victim is his elder sister and she passed away.
He also says that they used to play inside the factory premises.
It is his evidence that while playing, accused Nos.1, 2 and 3 took
his sister Sushmitha and after playing game, he went to house,
but Sushmitha did not accompany him and he identifies accused
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Nos.1, 2 and 3 before the Court. This witness was subjected to
cross-examination. In the cross-examination, it is elicited that
their parents were working in Raj Tiles Factory and on the date
of incident, except himself, his sisters and elder sister
Sushmitha, no others were playing and number of persons were
working in the tiles factory and he is not having acquaintance
with all of them. He says that he came to know the name of
accused Nos.1, 2 and 3 only when they informed their names.
He says that the place where they were playing was not visible
to their parents, however, they were playing inside the
compound. He admits that no other person came to the place
where they were playing. When he went back, parents asked
about Sushmitha and he did not disclose the same to parents
where she wnt. It is also elicited that while playing, accused
Nos.1 to 3 did not come to the place where they were playing.
99. P.W.22 is the father of the victim. He says that he is
working along with his wife from the last 3-4 years in the same
factory and identified accused Nos.1 to 3 and says that they are
working in the same factory and he has acquaintance with
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accused No.4. He also says that accused Nos.1 to 3 are staying
in a room which is inside the compound. It is his evidence that
all his children went to play within the factory premises and after
having food, he was sleeping and when his three children came
back to house, Sushmitha did not turn up and his wife informed
him and both of them went to search her, but found the dead
body at around 6.00 p.m. in the drainage and found only T-shirt,
but no innerwear and there were injuries on the body, including
on her private part and back and some of them told him to lodge
complaint. Hence, he went and lodged the complaint and police
came to the spot and found the innerwear of her daughter and
he has signed mahazar Ex.P2. He came to know that his
daughter was raped and murdered and suspected the role of
accused Nos.1 to 3, since earlier also they used to give some
chocolate and other items and used to touch her and there was
galata between him and accused. Thereafter, police arrested
accused Nos.1 to 4.
100. In the cross-examination by accused No.1 counsel,
he says that police took two persons, who were inside the
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compound to police station, including accused Nos.1 to 3 and
Mohan and Santhosh were also working along with them. He also
says that before arresting accused Nos.1 to 3, he informed the
police about suspicion against them. It is also his evidence that
accused Nos.1 to 3 were touching his daughter by giving
chocolate was not only known to him and his wife, but others
were also aware of the same. But, quarrel between accused
Nos.1 to 3 was not known to others. It is suggested that, he is
falsely deposing that accused Nos.1 to 3 were touching her
daughter by giving chocolate and the said suggestion was
denied. The cross-examination of accused No.1 counsel was
adopted by accused No.2. The counsel for accused No.4 cross-
examined this witness and he says that he came to know the
name of accused No.4 through police and he does not know
anything about him. It is suggested that he was having doubt
against Mohan and Santhosh and the same was denied.
101. P.W.23 in his evidence says that he came to know
about rape and murder and he was enquired after 8 to 10 days
of the incident. He speaks about giving the premises for lease
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and handing over the documents Exs.P51 to P54. This witness
was not cross-examined.
102. P.W.24 is the Supervisor of Raj Tiles Factory. In his
evidence, he says that police came to the spot in connection with
this crime and verified the CCTV. The CCTV clippings are
transferred from DVR to pen drive through CCTV Technician and
handed over to Investigating Officer and police have drawn the
mahazar in terms of Ex.P19 and identified DVR as M.O.8 and pen
drive as M.O.7 and the same is in respect of timings 10.00 a.m.
to 6.00 p.m. on 21.11.2021. This witness was also not cross-
examined.
103. P.W.25 in his evidence says that C.W.1 and C.W.2
were screaming that they did not find their daughter. On search,
they found the dead body in the drainage and removed the same
and only top was there on the dead body of the victim and below
the waist, no clothes and found blood stains and injuries on the
body and the police came and took the dead body. On the next
day, they were called to police station and then brought them to
factory premises and himself, Nonaiah and Shobha showed the
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place. It is also the evidence that underwear was found at a
distance of 25 feet from the dead body. C.W.1 says that the
same belongs to her daughter and police seized the same and
also collected the blood stains at the spot. There was a room
behind the place where the innerwear was found and in the said
room, found 3 coins, chocolate packet and also hair. The police
seized the same and drawn the mahazar in terms of Ex.P5 and
identified the signature as Ex.P5(c). The witness also identifies
M.O.1, M.O.9 and M.O.2. The accused counsel have not cross-
examined this witness and says no cross.
104. P.W.26 is the Senior Scientific Officer, RFSL,
Mangaluru. In his evidence, he says that after having received
the articles, did not find any poison, sedatives, drugs or alcohol
in the articles and issued the certificate in terms of Ex.P65 and
identifies the signature as Ex.P65(a) and this witness was not
cross-examined.
105. P.W.27 Police Constable in his evidence says that he
handed over 38 sealed packets to FSL as per the direction and
produced the acknowledgment in terms of Ex.P50. It is also his
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evidence that on 13.12.2021, he has received 4 sealed articles
and handed over the same to FSL on 14.12.2021 and produced
the acknowledgement in terms of Ex.P60. It is suggested by
counsel for accused No.2 that no articles were handed over to
FSL and the said suggestion was denied. Accused Nos.1, 3 and 4
counsel says no cross.
106. P.W.28, who is the Senior Scientific Officer, DNA
Section, State Forensic Science Laboratory, Madiwala deposes
that she has assisted more than 550 cases and reported more
than 500 cases. Her qualification is M.Sc., M.Phil and PHD in
Biochemistry. It is her evidence that on 01.12.2021, the police
personnel has submitted 52 sealed intact articles to the DNA
section along with case file and details of articles received in first
case are given and so also details are given in respect of second
case. She also deposes that she extracted the DNA from all the
56 articles, quantified, diluted and subjected to test and result
was analyzed. As per the result, blood stains were detected on
item Nos.2, 5, 8, 9, 11, 13, 16, 17, 18, 19, 21, 28, 41, 47, 48,
49, 50, 51 and 52. Blood stains were not detected on item
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Nos.1, 3, 4, 6, 7, 10, 12, 14, 15, 20, 22, 23, 24, 25, 26, 27, 29
to 40 and 42 to 46. Seminal stains were detected on item
Nos.32, 39 and 52 and seminal stains were not detected on item
Nos.1 to 31, 33 to 38 and 40 to 51. DNA profile result of blood
stains detected on item No.41 is of human origin and female
sex. DNA profile result of seminal stains detected on item No.52
is identical matching with DNA profile result of Muneem Singh's
sample blood sent on item No.56, so also DNA profile results of
seminal stains detected on item Nos.32 and 39 are identical
matching with DNA profile result of Mukesh Singh's sample blood
sent on item No.54. So also, Autosomal and Y-Chromosomal
DNA profile result of Jayan Adivas @ Jaya Singh, Mukesh Singh,
Maneesh Tirki and Muneem Singh sample blood sent in items
Nos.53, 54, 55 and 56 respectively are shown in Annexure-I and
Annexure-II. It is the evidence that based on DNA profile result,
it is confirmed that one female individual is included from being
the contributor of blood stains detected in item No. 41. Muneem
Singh's sample blood sent in item No.56 is included from being
the contributor of seminal stains detected in item No.52 and so
also, Mukesh Singh's sample blood sent in item No.54 is included
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from being the contributor of seminal stains detected in item
Nos.32 and 39. It is also the evidence of this witness that DNA
profiling report issued by her is already marked as Ex.P66 and
identifies her signature as Ex.P66(a). So also, Annexure-1 is
marked as Ex.P67 and the signature as Ex.P67(a), Annexure-2 is
marked as Ex.P68 and signature as Ex.P68(a) and sample seal is
marked as Ex.P69 and signature as Ex.P69(a). The identification
forms of Jayban Adivasi, Mukesh Singh, Maneesh Tirki and
Muneem Singh are already marked as Exs.P29 to P32. The
forwarding notes of these accused are marked as Exs.P70, P71,
P72 and P73.
107. This witness was subjected to cross-examination.
The counsel for accused No.1 says no cross-examination. In the
cross-examination of accused No.2 counsel, it is suggested that
since there is lapse of 16 months, there will be no positive result
in the report and the same was denied. Suggestion was also
made that due to lapse of time, she could not obtain a correct
result and the same was denied. It is also suggested that she
has not properly examined item Nos.54, 32 and 39, the same
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was denied and also suggested that examination she has
conducted does not connect with accused No.2 and the same
was denied. The accused No.3 counsel says no cross. The
counsel for accused No.4 suggested that item No.56 does not
relate to accused No.4 and the same was denied and also
suggestion was made that he is not qualified to issue DNA report
and the same was denied.
108. The other witness is P.W.29-Police Inspector. In his
evidence, he says that on 22.11.2021 he has verified the CCTV
camera and DVR and found suspicious movement of some of the
persons. Hence, directed to give report and also verified the pen
drive and given the report and he identifies the signature in the
report as Ex.P44(b) and pen drive is marked as M.O.7. It is his
evidence that he has verified the CCTV footage and at that time,
C.W.24 was along with him and he verified all 8 CCTV cameras
and not found movement of persons in camera No.1. In camera
2, movement of accused Nos.1, 3 and 4 was found and in
camera No.3, the victim was playing along with other children at
11.28 hours and found movement of accused after 2.54 to 2.56
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hours and except the victim girl, other children are found upto
2.56 p.m. In camera No.4, from 11.59 to 12.21 p.m., movement
of accused Nos.1 to 3 is also found. From 12.52 to 1.00 p.m.,
movement of victim and other three children is found and the
accused No.2 took the bag and moved. The accused Nos.1 and 3
were found at 2.56 p.m. and from 03.52 to 5.38 p.m., parents of
the victim and children were found. So also, movement of the
brother of victim at 2.57 p.m. was found in camera No.6 and the
victim was found playing till 1.00 p.m. in camera No.4. It is also
his evidence that in respect of accused Nos.2 and 4, a memo
was given to apprehend the accused and they left station at
10.00 p.m. and reached at 11.15 p.m. and found the accused
Nos.2 and 4 in sit out place of Mohammed Kalandar's house and
apprehended them and given the report in terms of Ex.P47 and
identified the signature as Ex.P47(b).
109. In the cross examination of accused No.1 counsel, it
is elicited that in camera No.2, apart from accused Nos.1, 3 and
4, others were also seen. But, in camera No.2, accused Nos.1, 3
and 4 were not found together and in camera No.4 apart from
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accused Nos.1 to 4, others were also found and accused Nos.1 to
4 were not found together in any of the cameras. In the cross-
examination by accused No.4 counsel, suggestion was made that
CCTV was created for the purpose of this case and the same was
denied. He says that accused Nos.2 and 4 were not known to
him earlier and no sign or symbol to identify them. It is
suggested that he has not accompanied accused Nos.2 and 4
and called accused to the police station and made them to stay
for a period of 1 week and they have been implicated in the case
and the said suggestion was denied. The accused No.2 counsel
makes the submission that cross-examination of accused Nos.1
and 4 counsel is adopted and so also, accused No.3 counsel says
he adopts the cross of accused No.1 counsel.
110. P.W.30 is the women Police Constable. In her
evidence, she says that as per the order of the Investigating
Officer on 04.12.2021, she took 13 sealed envelope cover and 4
sealed plastic bottles to RFSL and after having handed over the
same, produced the acknowledgement in terms of Ex.P74. The
accused Nos.1 and 4 counsel says no cross. The accused Nos.2
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and 3 counsel made the suggestion that not handed over any
articles to RFSL, Mangaluru and the same was denied.
111. We have perused the evidence of prosecution
witnesses and the evidence of prosecution witnesses P.Ws.1 to
30 in sum and substance is considered by us and this Court has
to analyze the evidence available on record. Having considered
the evidence of these witnesses, this Court has to analyze
whether the Trial Court has committed an error in convicting and
imposing death sentence on the accused and whether it requires
interference for acquittal or for reducing the sentence. Having
considered the gravity of the offence, the sentence imposed
must commensurate with the gravity of the offence and the
nature of crime. Considering the said aspect, this Court has to
consider both oral and documentary evidence available on
record.
LAW SET IN MOTION
112. The law is set in motion in this case by giving
complaint at Ex.P1. P.W.22 is the father and P.W.1 is the mother
of the victim, who went and lodged the complaint with the police
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in terms of Ex.P1, wherein they have stated that her elder
daughter Sushmitha, who is aged about 8 years was subjected
to rape and murder. In Ex.P1-complaint it is narrated by the
mother-PW1 that her children went to play at around 12.00 noon
and when three children came back at 3.00 p.m., the victim-
Sushmitha did not come back and immediately she started
searching her but she did not find her daughter. Thereafter, she
informed the same to her husband who was sleeping and both of
them started searching in the factory premises and after a long
search, they found the dead body of their daughter-Sushmitha
at 6.00 p.m. in the drainage and there was no cloth below the
waist and found only T-shirt on the upper part and innerwear
was not there and found injuries on the private part and all over
the body. Hence, they lodged the complaint stating that in
between 12.00 to 3.00 p.m., someone might have taken her
daughter by persuading her and committed forcible rape on her
and in order to screen the evidence, put her dead body in the
drainage and requested to take action.
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113. Having perused Ex.P1, it is clear that complainant
made the statement in Hindi language and the same is
translated between 7.00 to 7.30 p.m. and the same is recorded
by PW18 and registered the case in Cr.No.95/2021. In order to
substantiate the same, PW18 in her evidence deposed before the
Court that she received the complaint from PW1 and recorded
the statement and issued the FIR in terms of Ex.P4 and
identified the signature at Ex.P4(a) and Ex.P1(a) i.e., FIR and
complaint. This witness was not subjected to cross-examination.
But, no dispute that the law was set in motion since PW1 spoken
about giving of complaint in paragraph 3 of her chief evidence
and no denial also in the cross-examination.
CIRCUMSTANTIAL EVIDENCE TO LINK THE CRIME
114. The case is rest upon the circumstantial evidence.
Hence, this Court has to consider whether chain link is
established to come to a conclusion that these
appellants/accused persons were involved in the crime.
115. The counsel appearing for accused No.1 in his
argument would contend that there is no material about the
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presence of accused No.1 in the entire premises and the same
would not be an incriminating circumstance and the same cannot
be accepted. The counsel for accused No.1 totally denied the
involvement of this accused. The counsel appearing for other
accused i.e., accused Nos.2 and 3 also adopted the arguments of
the counsel appearing for the accused No.1 with regard to the
circumstances is concerned.
116. The counsel for the appellant/accused No.1 relied
upon judgment of Apex Court reported in (1984) 4 SCC 116 in
the case of SHARAD BIRDICHAND SARDA vs STATE OF
MAHARASHTRA. In that judgment, the Apex Court observed
that in a case of circumstantial evidence, five steps should be
satisfied which read thus:
1. The circumstances from which the conclusion
of guilt is to be drawn should be fully
established.
2. The facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except
that the accused is guilty.
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3. The circumstances should be of a conclusive
nature and tendency.
4. They should exclude every possible hypothesis
except the one to be proved and
5. There must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.
117. The counsel also relies upon the judgment of the
Apex Court reported in (2015) 11 SCC 43 in the case of RAJA
@ RAJINDER vs STATE OF HARYANA wherein also the Apex
Court reiterated that in a case of circumstances evidence, the
Court has to be satisfied the following circumstances:
1. The circumstances from which an inference of
guilt is sought to be drawn, must be cogently
and firmly established;
2. Those circumstances should be of a definite
tendency unerringly pointing towards guilt of
the accused;
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3. The circumstances, taken cumulatively, should
form a chain so complete that there is no
escape from the conclusion that within all
human probability the crime was committed by
the accused and none else, and
4. The circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that
of the guilt of the accused and such evidence
should not only be consistent with the guilt of
the accused but should be inconsistent with his
innocence.
118. This Court also would like to rely upon the recent
judgment of the Apex Court in a case of SUBRAMANYA vs
STATE OF KARNATAKA reported in (2023) 11 SCC 255
wherein also, the Apex Court discussed with regard to the
satisfaction of the Court in connection with the circumstantial
evidence is concerned in paragraphs 47 and 48 which reads
thus:
"The following conditions must be fulfilled before
a case against an accused can be said to be fully
established by the prosecution:
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(1) the circumstances from which the conclusion
of guilt is to be drawn should be fully established. The
Supreme Court indicated that the circumstances
concerned "must or should" and not "may be"
established. There is not only a grammatical but a
legal distinction between "may be proved" and "must
be or should be proved". Certainly, it is a primary
principle that the accused must be and not merely
may be guilty before a court can convict and the
mental distance between "may be" and "must be" is
long and divides vague conjectures from sure
conclusions.
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on any
other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so
complete as not to leave any reasonable ground for
the conclusion consistent with the innocence of the
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accused and must show that in all human probability
the act must have been done by the accused.
These five golden principles constitute the
panchsheel of the proof of a case based on
circumstantial evidence.
In a case of circumstantial evidence, the
judgment remains essentially inferential. The
inference is drawn from the established facts as the
circumstances lead to particular inferences. The Court
has to draw an inference with respect to whether the
chain of circumstances is complete, and when the
circumstances therein are collectively considered, the
same must lead only to the irresistible conclusion that
the accused alone is the perpetrator of the crime in
question. All the circumstances so established must be
of a conclusive nature, and consistent only with the
hypothesis of the guilt of the accused."
119. When the case is filed by the prosecution, entire
burden is on the prosecution and each circumstances must be
proved beyond reasonable doubt and that circumstances must
form a unbreakable chain of circumstances which will implicate
the accused for the charges and each circumstances has to be
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dealt independently and tested about its veracity and no
reasonable doubt exists in the prosecution case when all
circumstances are put together.
120. Keeping these principles laid down in the judgments
referred supra by the counsel appearing for accused No.1 as well
as the principles laid down in the judgment of the Apex Court
which referred by this Court, this Court has to examine the
circumstantial evidence to comes to the conclusion that whether
the said circumstances proves the case against the accused in
the light of the grounds which have been urged in both appeal as
well as submissions made by the respective counsel during the
course of arguments.
PREVIOUS SUSPICION
121. The first circumstances relied upon by the
prosecution is with regard to the previous suspicion. The counsel
appearing for the appellants would vehemently contend that with
regard to the previous suspicion is concerned, in Ex.P1, the
same is missing. The previous suspicion is manipulated for the
purpose of this case and there was no such any incident. The
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counsel would submit that father and mother of the deceased
said that they had suspicion against accused Nos.1 to 3 as these
people were misbehaving with their child earlier and they were
also playing with their child. Hence, they quarreled with the
accused persons on previous occasion. The counsel brought to
notice of the contents of the complaint at Ex.P1 wherein the
previous suspicion is missing.
122. This Court has to examine whether the statement is
made by PW1 at Ex.P1 there was any suspicion or not and the
same is missing. However, this Court has to take note of the
statement of PW22 who is the father of the deceased. He made
the statement at the time of conducting the inquest of the dead
body on 22.11.2021. On finding the dead body in the previous
day, inquest was conducted on the next day. In column number
IX of the inquest, the father-PW22 made a specific averment
that he is working in the factory wherein also accused Nos.1 to 3
were working. From last 3 to 4 months, accused persons used to
give chocolate to his daughter and touching her body. When the
same was noticed by himself and his wife, both of them scolded
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accused Nos.1 to 3 and hence, suspected the role of the accused
in the alleged incident. This is found in the inquest statement
when inquest was made on 22.11.2021. When such statement
was made, Panchayathdars who were present also requested the
IO to enquire about the same and the said statement is found in
the last portion of inquest. With regard to suspicion is concerned,
Court has to see the evidence of PW1 and PW22. No doubt, the
said suspicion is not found in Ex.P1. But Court has to see that
whether PW1 has spoken about the same or not.
123. PW1, with regard to the suspicion is concerned,
reiterated the same in her chief evidence in paragraph 4. No
doubt, the same is denied during the course of cross-
examination of PW1 making the suggestion that no such incident
was taken place and not scolded accused Nos.1 to 3. But it is
very clear that they suspected the role of accused Nos.1 to 3 on
the very next day while conducting the inquest. The very
contention of the counsel for the appellants that in the
complaint, it is not found and the same cannot be accepted since
the Court also cannot expect the same while lodging the
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complaint itself and the statement made before the police at the
first instance is not an encyclopedia and the same is observed by
the Trial Court while considering the case and each and every
circumstances cannot be expected while setting law in motion
since people who have lost their child would be blank and under
distress.
124. The other witness is PW22, who is the father of the
deceased. In his evidence in paragraph 3, he says that he was
also having the suspicion against the accused and reiterated that
earlier also, the accused used to give chocolate and other things
to his daughter and touching her body inappropriately and in this
connection, there was a quarrel between them. In the cross
examination of this witness, he says that prior to arresting of
accused No.1, he has stated about suspicion against him. PW22
not only says giving of chocolate and misbehaviour known to him
and his wife but also says that some of them also aware of the
same, but scolding accused Nos.1 to 3 was not known to the
others as they were not there. A suggestion was made that no
such incident was taken place and there was no any suspicion
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and the same was denied. The counsel for accused No.4 during
the course of cross-examination suggested that suspicion was
there against Mohan and Santhosh and the same was denied and
the evidence of PW1 and PW22 are consistent with regard to
earlier incident.
125. Having taken note of evidence of PW1 and PW22, it
discloses that there is no contradictions in their evidence about
the previous conduct of accused Nos.1 to 3. It has to be noted
that PW22 made the statement before the Police while
conducting the inquest on the very next day, thus, there was no
such delay. Hence, the contention of the counsel for the accused
that contents of Ex.P1 does not disclose the suspicion cannot be
accepted and Court also cannot expect the same when
everything is contained in the complaint Ex.P1 and law is set in
motion by filing Ex.P.1.
LAST SEEN THEORY
126. The other circumstance is last seen theory. The
prosecution relies upon the evidence of PW5 as well as PW21.
PW5 is the lady from neighbourhood where she stated that she
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has seen accused Nos.1 to 4 playing with the deceased. The
prosecution relies upon the evidence of PW5 wherein she
categorically deposes that on the particular date of incident,
when her daughter wanted to play having noticed Sushmitha and
other children of PW1 and PW22 were playing, she brought her
daughter and made her to play along with them for 15 minutes
after providing food to her. At that time accused Nos.1 to 3
came with the influence of alcohol and started dancing having
Sushmitha and her brother on their shoulder and thereafter she
brought her daughter back. It is also her evidence that when
herself, PW4, her mother and PW3 and CW9 and CW11 were
talking at around 05.30, parents of the deceased came and
informed that Sushmitha did not turn up after playing. Hence,
she informed that accused Nos.1 to 3 were dancing along with
deceased. It is her evidence that PW4 who was present at the
spot on revealing the same went to enquire accused Nos.1 to 3
entering the factory premises. But he came and told that all of
them under the influence of alcohol are sleeping and made his
efforts to awake them, but they did not wake up. With regard to
this last seen theory is concerned, counsel for accused No.1
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questioned this witness and witness says that she went to police
station on 23.11.2021 and she did not notice whether accused
were there in police station or not. The suggestion was made
that on 23.11.2021 after the arrest of accused Nos.1 to 3, she
made the statement that they were playing with deceased and
dancing and the said suggestion was denied. The counsel for
accused No.2 not disputed the same. But the counsel for
accused No.3 elicited that while taking her daughter back, she
did not inform the children of PW1 to go to house. In the cross-
examination of PW5 by the counsel for accused No.4 it is elicited
that at around 05.30 on 21.11.2021 when PW1 came and
enquired, she told that accused persons were dancing with the
deceased. It is suggested that she did not inform the presence of
accused No.4 to the police and the said suggestion was denied.
It is also suggested that for the first time, she is witnessing
accused No.4 before the Court and the same is denied. Having
considered this evidence, it is clear that when PW1 came in
search of her child, she informed the same, as a result, PW4
went to enquire them but they were sleeping having consumed
the alcohol.
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127. This Court has to take note of the evidence of
another witness i.e., PW21 who is the brother of the victim. In
his evidence, he says that he along with other sisters was
playing on the particular date and he says that accused Nos.1 to
3 took his sister while playing, they went back to the home. But
Sushmitha did not accompany them. This witness was cross
examined. In cross examination, he says that except himself, his
sisters, others were not playing and he came to know the name
of these accused when they disclosed the same. This admission
is very clear that no one came while they are playing. Parents
also enquired about Sushmitha when she did not accompany
them. But he did not inform the parents about Sushmitha. It is
important to note that PW21 says that accused Nos.1 to 3 did
not come to the spot. Having considered the evidence of PW21
with regard to the last seen theory of these accused persons, his
evidence not inspires the confidence of the Court and only it
appears as improvement that accused Nos.1 to 3 took his sister
Sushmitha and his statement was recorded after 24 days. Apart
from that, on enquiry nothing is revealed to his mother when he
came back with other sisters.
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128. This Court has to take note of the evidence of PW3
and PW4. PW3 in her evidence, says that on 21.11.2021, herself,
CW11 to 14 were talking at around 05.30 p.m. near her house
and at that time parents of the Sushmitha came and informed
that daughter did not turn up to home. At that time, she stated
that all the 4 children were playing inside the factory. The same
was disclosed by CW14 also. She also says that CW12 went to
search for them entering inside the factory and he came and told
that accused Nos.1 to 3 were sleeping with the influence of
alcohol and CW12 went to enquire accused Nos.1 to 3. In the
cross examination of this witness, the counsel for accused No.1
elicited that CW12 informed the police that accused were
sleeping and not denied that he went and enquired accused
Nos.1 to 3. Even counsel appearing for accused Nos.2 to 4 also
not denied the same while cross-examining the witness.
129. The Court has to take note of evidence of PW4. PW4
in his evidence says that accused Nos.1 to 3 are also the
employees of the same factory and they are staying in the
accommodation given by the employer. His evidence is also very
130
clear that on 21.11.2021 at around 05.30 when he himself,
CW10 and CW11 were talking near his house, PW1 and PW22
came and informed that their daughter did not turn up to the
home. Thereafter, he went inside the factory and he also visited
the room of accused Nos.1 to 4 wherein he saw that they were
sleeping and immediately he heard the hue and cry. In the cross
examination of this witness it is elicited that he also went to
room of accused persons and checked the room and he was
having acquaintance with the accused and hence, he went to call
them to search the child. He made all his efforts to make them
to awake, but they did not wake up. Hence, the evidence of
PW3, PW4 and PW5 is very clear that PW5 informed about
playing of the children and accused Nos.1 to 3 were also playing
with children. The same was informed to parents and
consequently PW4 made his efforts to enquire with accused
Nos.1 to 3 and make them to wake up, but he could not wake up
and the same is also spoken by PW3. Hence, it is clear that at
around 05.30, PW5 informed the same. But the very contention
of the counsel appearing for the accused that if that is the case,
PW1 would have informed the same immediately with the police
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and narrated the same in Ex.P1. This Court already pointed out
that when PW1 was already in the pathetic condition since she
lost her daughter and she is under distress and shock and the
Court also cannot expect the same. But the fact is that PW22,
father had disclosed the previous incident even at the time of
conducting the inquest itself and the same will not go to the very
root of the case of the prosecution as contented by the counsel
for the appellants and the same cannot be accepted.
REPORT OF CCTV FOOTAGE
130. Now, the other circumstance is with regard to the
report of CCTV footage which is marked as Ex.P44 in connection
with the very presence of the accused persons in the vicinity of
the factory premises. It is not in dispute that incident was taken
place within the factory premises that too in a remote place. The
main contention of the counsel that in CCTV footage, it is clearly
visible that accused No.1 is freely moving around i.e., in camera
No.4 at 12.16 and at 12.21 also discloses the same. Even at
13.42, in camera No.2 disclosed that Mukesh and Jayban Singh
proceeding towards the room so also at 13.43 with other
persons. At around 14.56, coming back to factory premises and
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the same is disclosed in camera No.4 and so also in camera No.2
proceeding towards the room and so also in camera No.3. In
none of the CCTV footage, accused No.1 is seen in the company
of the deceased and there is nothing suspicion in the movement
of accused No.1 and he is roaming around with different set of
people which will clearly show that he had no knowledge about
the incident.
131. The counsel also submitted that Sushmitha was
playing with the children at around 10.28, 11.44 and 11.28 and
Sushmitha and her brother Somanath and other children coming
inside at 12.52 a.m. and also at 01.00 a.m. It is visible that they
are playing outside the gate as well as inside the gate. Hence, it
is clear that the deceased was within the premises between
10.28 to 13.00 hours playing with her siblings. Accused No.1 is
never seen together with the deceased as per the footage. The
counsel also not disputes the fact that the deceased was last
seen at 13 hours. It is the case of the prosecution that in
between 13.00 to 13.30 hours, the deceased was subjected to
sexual act and committed the murder. In this regard, this Court
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has to consider the report of the CCTV footage which is marked
as Ex.P44 and not found any movement in camera No.1 either
the victim and accused persons during this time. But in camera
No.2, it is clear that accused-Manish Thirki was proceeding at
13.32 hours. He was proceeding towards the office and the
Munim also at 13.39 hours proceeding towards the office. Even
at 13.40 he was proceeding towards the room and Munim also
proceeding at 13.42 along with accused No.1 proceeding towards
office room and accused No.1 also proceeding towards the room
at 14.56. Camera No.3 discloses that victim was playing at 11.28
a.m. but accused Manish Thirki was proceeding towards the
room at 14.54 and so also the accused Jayban Singh at 14.56
and victim was not found. At 14.56 hours, 4 children were there
except victim. The Camera No.4 also discloses that accused
Manish Thirki, Jayban Singh were entering inside the gate and
going out from the gate. Accused No.1 came back at 12.21 and
at 13.00 hours, all the children were playing. Accused Manish
Thirki was proceeding along with one Harivaran and so also
Munim at 13.43 hours. In between 01.00 to 01.30 p.m., there
was no movement of these accused persons. The witness-PW29
134
in his evidence also spoken that on the instructions of the police
on 22.11.2021, pen drive and DVR clippings were taken and he
gave the report in terms of Ex.P44. He categorically deposes that
in camera No.2, the very presence of accused Nos.1, 3 and 4
was found in between 01.32 to 02.56 p.m and also their moment
was found from 02.54 to 02.56. Also found the movement of
accused Nos.1 to 3 from 11.59 to 12.21 and movements of the
accused Nos.1 to 4 were found only after 01.43. Accused No.2
was moving along with bag. Accused Nos.1 and 3 found after
02.56 and victim was there till 01.00 p.m. and thereafter she
was not found. Hence, it is clear that the very presence of victim
was there till 01.00 p.m. and thereafter her presence was not
found. In between 01.00 to 01.30 p.m., the very presence of
accused nos.1 to 3 is missing and they started moving only after
01.30 and this timing matches with the case of the prosecution
and no explanation by the accused persons in 313 statement.
132. The main contention of the learned counsel for
accused No.1 with regard to CCTV is concerned is that, accused
No.1 is not found with the deceased in any of the cameras and
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he was moving freely, but not denied the fact that he was very
much present in the premises. Accused No.1 was not found
along with the deceased cannot be a ground to disbelieve the
case of the prosecution. The fact that the child was playing in
the very same vicinity from 11 o'clock till 1 o'clock in the said
vicinity is not in dispute. The learned counsel for accused No.1
has not stated anything about missing of accused No.1 in
between the timings of the alleged crime. No doubt, the learned
counsel contend that in CCTV many other people movements are
also there and timing of movement is not odd as it was Sunday.
Merely because accused No.1 was moving along with other
accused and other public, cannot take away the case of the
prosecution in the absence of explanation in between the timings
as contended by the prosecution having committed the offence.
133. With regard to CCTV footage collected, the Court has
to take note of the evidence of P.W.10, who is the partner of
Core Clay Bricks and Tiles. P.W.10 in his evidence, he
categorically says that on 22.11.2021, the police came to factory
and inspected the CCTV footage and collected the footage after
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getting downloaded it to a DVR and pendrives under the
mahazar in terms of Ex.P.19. There was no any cross-
examination by the defence disputing the same. P.W.11, who is
doing the business of CCTV Sales and Service says that, he was
called upon by the police and asked to give CCTV footage from
10.00 a.m. to 6.00 p.m. of 21.11.2021. The same was
downloaded and put the same in pendrive and he had handed
over the same to the police and also given the certificate. He
identified his signature in Ex.P.19 mahazar for seizure of the
same and also the certificate under Section 65B(4) of the
Evidence Act Ex.P.20 and his signature as Ex.P.20(a). His
evidence is very clear that pendrive and DVR were packed and
sealed. The pendrive and DVR are marked as M.O.7 and M.O.8
and even DVR was played in the Court and got confirmed the
same. In the cross-examination, an answer is elicited that when
he went to the factory, the police collected the CCTV footage by
downloading the same and except the suggestion that DVR and
pendrive are created, nothing is elicited from the mouth of this
witness.
137
134. P.W.24, who is the Supervisor of Raj Tiles Factory,
reiterates that police came and verified the CCTV footage and
got the same transferred to the DVR and pendrive. The same
was done through the technician Javed Afthar and mahazar was
done in terms of Ex.P.19 and he is also one of the signatory to
the seizure of the same. He categorically deposes that between
10.00 a.m. to 6.00 p.m., events are captured in the CCTV. This
witness was not cross-examined.
135. Having considered the material available on record,
particularly Ex.P.19, the evidence of these witnesses and M.O.7
and M.O.8 i.e., DVR as well as pendrive, the witnesses have
spoken and the same is not seriously disputed, except
contending that the accused persons were not found along with
the deceased. There is a clear evidence of Section 65B(4)
certificate in terms of Ex.P.20 and CCTV footage also recovered
in the presence of the witnesses and the witnesses have spoken
about the same and the Court can rely upon the same as
admissible in evidence. Hence, it is very clear that in terms of
the CCTV footage, the accused persons were very much present
138
in the location where the crime was committed and their
movement was also found along with other persons, including
the accused and in between the timings 1.00 p.m. to 1.30 p.m.,
their movement is not found and the alleged crime according to
the prosecution is in between 1.00 p.m. to 1.30 p.m. Hence,
CCTV footage also comes to the aid of the prosecution and
hence, the contention of the learned counsel for the appellants
cannot be accepted.
RECOVERY OF CLOTH OF THE ACCUSED AT THE INSTANCE
OF THE ACCUSED.
136. According to the prosecution, having apprehended
the accused persons, their voluntary statement was recorded
and clothes were seized at the instance of accused Nos.1 and 3
as well as accused Nos.2 and 4 and to that effect, mahazar was
also drawn. The pant of accused No.1 was marked as M.O.25,
shirt was marked as M.O.26, underwear was marked as M.O.27,
hair from underwear was marked as M.O.28 and the chikki
recovered from the room of accused No.1 was marked as
M.O.29. No doubt, the blood stains were not detected in the shirt
and hair. But blood stains were detected in pant and underwear
139
of accused No.1. The learned counsel would submit that no
seminal stains were found in those articles and contend that FSL
report is inconclusive and that there is no report as to whether it
is human blood or animal blood and no blood groupings was
done. The learned counsel contend that the blood stains found in
pant and underwear of accused No.1 is incriminating against
accused No.1, cannot be accepted when there is blood grouping.
137. The learned counsel in support of his arguments
relied upon the judgment of the Apex Court in the case of Kansa
Behera (supra) and brought to the notice of this Court
paragraph No.11, wherein discussion was made with regard to
the recovery of shirt or dhoti with blood stains. There is no
evidence in the report of the serology about the group of the
blood and therefore, it could not positively be connected with the
deceased. Few small blood stains on the clothes of a person
may even be of his own blood, especially if it is a villager putting
on these clothes and living in villages. The learned counsel also
relied upon the judgment of the Apex Court in the case of
Mustkeem @ Sirajudeen (supra) and brought to the notice of
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this Court paragraph No.23, wherein it is held that AB blood
group which was found on the clothes of the deceased does not
by itself establish guilt of the appellant unless the same was
connected with the murder of the deceased by the appellants.
The fact that the traces of blood found on the deceased matched
those found on the recovered weapons cannot ipso facto enable
to come to a conclusion that the latter were used for the murder.
138. The learned counsel also relied upon the judgment of
the Apex Court in the case of Raja Naykar (supra) and brought
to the notice of this Court paragraph No.16, wherein it is held
that as per the FSL report, the blood stains found on the dagger
were of human blood. However, the FSL report does not show
that the blood found on the dagger was of the blood group of
the deceased. The learned counsel also relied upon the Division
Bench judgment of Dharwad High Court rendered in
Crl.A.No.100335/2022 dated 26.11.2025. The learned
counsel referring these judgments would vehemently contend
that merely because FSL report is positive about the blood stains
141
found in the pant and underwear of accused No.1, the same
cannot be a conclusive proof.
139. The learned counsel also would submit that with
regard to DNA is concerned, the Trial Court committed an error
by observing that the pant M.O.25 and underwear of accused
No.1 had blood stains, which are of human origin and 'B' blood
group and also by speculating that accused No.1 might have
ejaculated outside and that is why there is no DNA evidence
against accused No.1. The Trial Court committed an error in
paragraph No.62 that absence of seminal stains of accused
Nos.1, 3 and 4 in the said DNA profile result will not
automatically rule out the possibility of accused Nos.1, 3 and 4
involving in the said sexual activity, as there are chances of
ejaculation outside the body of the deceased. The learned
counsel would submit that blood stains found itself cannot be a
ground to convict the accused. Ex.P.66 is of human origin and
belongs to 'B' group of blood which belongs to the deceased. The
observation that these blood stains establish the presence of
accused Nos.1 to 4 and their involvement in the crime, is
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erroneous. The medical examination of accused No.1 conducted
by P.W.16 Dr. Rashmi concluded that no injuries were found on
the private part of accused No.1 or anywhere in the body.
Hence, the same is not incriminating material and it clearly
shows the innocence of accused No.1. In respect of penile
sample is concerned, it is very clear that blood group of accused
No.1 is 'B' positive and deceased blood group is also 'B' group.
The learned counsel contend that the evidence of P.W.13 as per
Ex.P.21 penile swab serology report shows that in the penile
swab of accused No.1, 'B' blood group was present and 'B' blood
group was detected in accused No.1's blood because his blood
group is 'B' positive and hence, the circumstances is not
incriminating. This argument cannot be accepted for the reason
that even though his blood group is 'B', but on examination of
accused No.1 by P.W.16 doctor, as per Ex.P.35, no injuries were
found on the private part of accused No.1 or anywhere in the
body. If any injuries were found on accused No.1, then this
argument could have been accepted. But there are no injuries
and hence, the question of his blood group of 'B' blood stains
were found in his pant and underwear cannot be accepted. But
143
'B' blood group of the deceased was found in the innerwear as
well as pant, which was worn by accused No.1. No doubt, in
respect of accused No.2 and 4 only, DNA test is positive and in
respect of accused Nos.1 and 3, DNA is not positive. That will not
take away the case of the prosecution and there was no any
explanation on the part of accused Nos.1 to 3 with regard to
human blood of deceased was found on their cloth in 313
statement.
140. The other contention that blood group was not
ascertained cannot be accepted. Ex.P.24 addressed by the
Associate Professor and District Medico-Legal Consultant,
Department of Forensic Medicine and Toxicology is clear that
final opinion was sought as to the cause of death of Kumari
Sushmita. Clinical exam analysis report is also given. The
medical examination of blood grouping of accused Nos.1 to 4
was done. The blood group of accused No.1 is 'B' positive and
blood group of Munim Singh accused No.4, is also 'B' positive.
But accused Nos.2 and 3 are 'A' positive. Hence, the contention
that blood grouping was not done cannot be accepted. DNA
144
documents Exs.P.29 to 32 are marked. It is important to note
that the evidence of P.W.15 is very clear that he received the
requisition for collection of blood samples of accused persons for
the purpose of DNA analysis and 3 ml. blood samples of accused
Nos.1 to 4 was collected, sealed and packed. The same was got
marked as Exs.P.29 to 32. The collection of blood sample is not
disputed and there was no cross-examination. Only accused
No.2 counsel suggested that if the blood is preserved with
preservatives, there is no time limit for conducting the
examination and suggestion was made that no blood samples
were collected from accused No.2 and the same was denied. But
no dispute with regard to the collection of blood is concerned
and blood grouping of each accused is done and accused cannot
blow hot and cold that accused No.1 blood group is 'B' positive
and cannot contend that blood grouping was not done.
141. It is important to note that P.W.13 speaks about
conducting of examination including pubic hair, penile swab and
nail clippings and the same are marked and after examination,
detected the blood in article Nos.U, W3, X3, Y3 and Z3, which
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were of human origin and of 'B' blood group. Hence, it is clear
that on examination found that it is a human origin of 'B' blood
group and given the report in terms of Ex.P.21. No doubt,
accused No.1 counsel got elicited that blood group can be
determined from body fluid and if a penile swab is collected from
the person having 'B' blood group, his swab also shows 'B' blood
group. The evidence of P.W.14 is very clear that one female
individual is included from being the contributor of the blood
stains detected on item No.41 (blood stains on the filter paper).
DNA profile result of seminal stains detected on item No.52
(underwear of Muneem Singh) is identical and matching with
DNA profile result of Muneem Singh. Blood stains of item No.56
so also DNA profile results of the seminal stains detected on item
Nos.32 and 39 (vulval swab and dried smear slides of vaginal
swabs) are identical and matching with DNA profile result of
Mukesh Singh S/o Eeshwari Singh. A suggestion was made that
he has not collected any swab from the dead body and the same
is denied by P.W.14. In the cross-examination by accused No.4
counsel, a suggestion was made that the presence of seminal
stains in one's own underwear is normal and the same is
146
admitted. Hence, it is very clear that blood stains were found in
the respective clothes. Though DNA is not positive against all
the accused, but material available on record is very clear and so
also the evidence of P.W.28 Senior Scientific Officer. Her
evidence is very clear that as per the result, blood stains were
detected on item Nos.2, 5, 8, 9, 11, 13, 16, 17, 18, 19, 21, 28,
41, 47, 48, 49, 50, 51 and 52. DNA profile result of blood stains
detected on item No.41 is of human origin and female sex. DNA
profile result of seminal stains detected on item No.52 is
identical matching with DNA profile result of Muneem Singh's
sample blood sent on item No.56 and so also in respect of
Mukesh Singh's sample, blood sent on item No.54. As there was
no DNA profile matching with accused No.1, accused No.2
counsel cross-examined her and suggestion was made and the
same was denied and so also accused No.4 counsel made the
suggestion and the same is denied, since there was a DNA
against accused Nos.2 and 4.
142. Now, this Court has to consider the evidence of
recovery witnesses with regard to seizure of clothes at the
147
instance of accused Nos.1 and 3 as well as accused Nos.2 and 4.
P.W.6 in his evidence categorically deposes before the Court that
he found the t-shirt on the body of the deceased and also found
innerwear at a distance from the dead body and articles were
seized. The evidence of P.W.6 is very clear that on 25.11.2021,
police called him to the police station and C.W.16 was also
present and accused No.3 took them to room No.2 and he had
produced t-shirt, innerwear and accused No.2 took them to room
No.3 and he had produced his clothes. Apart from that, chikki
and arrack packets were seized by drawing the mahazar in terms
of Ex.P.6 and also pointed out the place where they committed
the act and mahazar was drawn in terms of Ex.P.7. The clothes
which were brought from the hospital were also seized by
drawing mahazar in terms of Ex.P.8. In the cross-examination,
except suggestion that they did not produce any cloth and also
not pointed out the place where they committed the murder,
nothing is elicited. Only suggestion was made that even not
seized any articles in the police station. But only answer is given
that he cannot tell the colour of the cloth. It is elicited that he is
doing the sand business and having connection with police.
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Except these answers, nothing is elicited and no enmity. Accused
No.4 counsel suggested that accused No.4 was not present and
the same was denied. M.O.22 to M.O.24 and M.O.25 to M.O.27
are marked and chikki packet is also marked as M.O.29.
143. The other witness is P.W.7, who is a witness for
recovery from accused Nos.2 and 4. P.W.7 says that the accused
persons were there in the police station and accused led them to
their house and accused No.2 produced his pant, shirt,
innerwear and accused No.4 also produced his pant, shirt and
jacket and mahazar was drawn in terms of Ex.P.9 and C.W.18
signed the same and photos were also taken. He identifies
photos as Ex.P.10. Accused No.2 counsel elicited in the cross-
examination that there are other houses surrounding the said
house and suggestion was made that no clothes are seized and
the same was denied. In the cross-examination by accused No.4
counsel, got elicited that he is seeing Exs.P.11 to 14
photographs for the first time and suggestion was made that the
clothes M.Os were not seized and the same was denied. With
regard to the recovery of clothes is concerned, nothing is elicited
149
from the mouth of P.W.6 and P.W.7 and their evidence is
consistent that accused only led and produced the clothes. P.W.8
speaks with regard to the seizure of mobiles from accused Nos.1
and 3 and mahazar was drawn in terms of Exs.P.15 and 16.
With regard to seizure of mahzar is concerned, nothing is elicited
in the cross-examination of this witness. P.W.9 also speaks
about recovery from accused Nos.2 and 4 regarding seizure of
cloth from accused Nos.2 and 4 and he also identifies his
signature in Ex.P.9 and also photograph Ex.P.10. This witness
speaks about accused No.2 left the job, but accused No.4 was
working with him and accused No.2 used to come to the house
of accused No.4. A suggestion was made that no clothes were
found in the room and the same was denied and nothing is
elicited in the cross-examination of P.W.9 regarding recovery of
clothes at the instance of accused Nos.2 and 4.
144. Having considered the evidence of P.W.6, P.W.7,
P.W.8 and P.W.9, it is very clear that not only seized the clothes
from the respective accused persons, but recovery of mobile was
also made. The prosecution proved the recovery of blood
150
stained clothes from accused Nos.1 to 4. But accused No.4 is
not subjected to conclusion of the trial and he absconded after
the trial was over. Having taken note of the material available
on record with regard to the recovery, the prosecution proved
the case and blood stains were also found and merely because
DNA was not found in respect of some of the accused persons,
the same cannot be a ground. The contention that no blood
grouping was done cannot be accepted and report Exs.P.25 to 29
is very clear and the contention that no report as to whether it is
human blood or animal blood cannot be accepted. DNA report is
very clear with regard to the blood group of the deceased is 'B'
group and principles laid in the judgments referred by the
learned counsel for the appellants will not come to the aid of the
appellants.
145. This Court also would like to rely upon the judgment
of the Apex Court in the case of BALWAN SINGH v. STATE OF
CHHATTISGARH AND ANOTHER reported in (2019) 7 SCC
781, wherein the effect of failure to establish origin of blood as
being of human origin and/or its blood group, on the prosecution
151
case is discussed. Law was also summarized and held that the
same has to be ascertained in the facts and circumstances of
each case and there is no fixed formula for the same. In
paragraph No.21, referring the judgment of the Apex Court in
the case of JOHN PANDIAN v. STATE reported in (2010) 14
SCC 129, the Apex Court held that evidence of recovery of
weapons was credible. The Forensic Science Laboratory report
had disclosed that the blood was of human origin. The Court
proceeded to conclude that since the evidence of recovery of
weapon was proved to the satisfaction of the Court, it was
sufficient that the prosecution had proved that the blood stains
were of human origin, even though the blood group could not be
ascertained. But in the case on hand, blood group of each of the
accused is ascertained and even the victim's blood group is also
ascertained. In paragraph No.23 of the said judgment it is held
that if the recovery of bloodstained articles is proved beyond
reasonable doubt by the prosecution, and if the investigation
was not found to be tainted, then it may be sufficient if the
prosecution shows that blood found on the articles is of human
origin though, even though the blood group is not proved
152
because of disintegration of blood. The Court will have to come
to the conclusion based on the facts and circumstances of each
case, and there cannot be any fixed formula that the prosecution
has to prove, or need not prove, that the blood groups match.
In the case on hand, accused blood group is ascertained and so
also the blood group of the deceased that the same is of human
origin and hence, the very contention of the learned counsel for
the appellants cannot be accepted. The recovery is proved and
FSL report also supports the case of the prosecution and the
very contention that the Trial Court committed an error cannot
be accepted.
146. The other recovery is chikki packet M.O.29 from
accused No.1. It is important to note that P.W.12 in his evidence
categorically deposes that on the particular date, accused No.1
only purchased chikki from his shop. No doubt, in the cross-
examination he says that others also purchase chikki from his
shop. But his evidence is very clear that on 21.11.2021, accused
No.1 came and purchased chikki. On the very same day, he
came to know that daughter of P.W.1 and P.W.22 was murdered.
153
He says that the victim girl also used to come and purchase from
his shop. It is not the evidence of P.W.12 that on that day the
victim girl had purchased the chikki, but accused No.1 had
purchased. This court has to take note of the evidence of
P.W.14, doctor, who conducted the post mortem along with Dr.
Rashmi. His evidence is very clear that he found 250 grams of
undigested food particles mixed with black colour powder
particles with no characteristic odor. His evidence is very clear
that face was swollen and congested and eatable chewed
gummy materials was present in between clinched teeth of right
side of the mouth. It is also the case of the prosecution that
accused No.1 used chikki to take the victim and this material
i.e., eatable chewed gummy material was present in between
clinched teeth of right side of the mouth of the deceased as well
as 250 grams of undigested food particles mixed with black
colour powder particles with no characteristic odor. This
substantiate the case of the prosecution that prior to committing
the sexual act on the victim, accused No.1 purchased chikki. But
it was around 1.00 p.m. and the child might have had breakfast
in the morning and when the same was had in the morning,
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digested food would be there. But in the case on hand, 250
grams of undigested food particles mixed with black colour
powder particles were found. Apart from that, even in the teeth
eatable chewed gummy materials were present in between
clinched teeth of right side of the mouth and the same
substantiate the contention of the learned counsel appearing for
the State that by providing the chikki, she was subjected to
sexual act.
147. Having considered overall evidence available on
record and also the principles laid down in the judgments
referred supra by the learned counsel for the appellants and also
considering the material available on record, the Trial Court
rightly comes to the conclusion that all this chain link establishes
the very act of accused persons in committing rape on the girl,
who is aged about 7 years 7 months. The evidence of witness is
very clear that injury is on the private part of the victim. P.W.14
doctor evidence is also very clear that the victim girl had
sustained injuries, which is mentioned in paragraph No.5 of the
doctor's evidence, which reads as follows:
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a. Diffuse swelling seen over forehead.
b. Abrasion of 2.5 x 1.5 cm seen over center of
forehead.
c. Contusions of 4 x 1 cm present over mucosal
surface of upper lip and 3 x 1 cm seen over lower
lip.
d. abrasion of 2 x 1 cm seen lateral to outer canthus
of left eye.
e. Abrasion of 1 x 0.5 cm seen 1 cm below the
injury No.'d'.
f. linear abrasion of 1 cm below the injury No.'e' on
the upper part of left cheek.
g. Abrasion of 2 x 1 cm seen on the lateral part of
left cheek 3 cm away from tragus of left ear.
h. Abrasion of 1 x 1 cm seen over post auricular
area of right ear.
i. Abrasion of 1 x 1 cm seen over lateral aspect of
right side of neck, 6 cm below right ear lobule.
j. Multiple abrasions present over an area of 4 x 5
cm present over front part of neck away midline
ranging from 0.5 x 0.5 cm to 3 x 0.5 cm on left
side of neck, situated 7 cm above suprasternal
notch and 4 cm below the chin.
k. Abrasion of 1 x 0.5 cm seen over suprasternal
notch.
l. Graze abrasion of 3 x 2 cm outer aspect of left
elbow Joint.
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m. Linear abrasion of 2 x 0.2 cm placed vertically
over medial aspect of left ankle joint
n. Obliquely placed abrasion of 6 x 0.2 cm seen over
anterolateral aspect of lower part of right leg.
o. Multiple abrasions seen over an area of 3 x 2 cm
on dorsum of right foot ranging from 0.5 cm to 1
x 1 cm.
p. Abrasion of 2 x 1 cm seen along mid line over
lower part of nape of neck.
All the above injuries are ante mortem and fresh in nature.
148. The evidence of the doctor is very clear that cause of
death is due to asphyxia as a result of compression of neck
structures by hand secondary to throttling (manual
strangulation) and also forceful penetrative sexual act. This very
evidence clearly discloses that the victim was subjected to
forceful penetrative sexual act and death was due to
strangulation and hence, it is a clear case of homicide and
subjecting the child for sexual act, that too by a group of
persons i.e., accused persons. It is a case of gang rape against
a minor girl, who is aged about 7 years and 7 months. The Trial
Court in minute taken note of the material available on record
and hence, the very contention of the accused counsel that even
157
though the prosecution failed to establish the case, the Trial
Court convicted accused persons erroneously, cannot be
accepted. The material available on record establishes the chain
link in a case of circumstantial evidence and the principles laid
down in the judgments referred supra with regard to
circumstantial evidence is concerned, pancha sheela ought to be
in favour of the prosecution and the same is established and the
Trial Court has not committed any error in coming to such a
conclusion.
149. Now the issue before this Court is with regard to
imposing of death sentence on the accused and whether the
same commensurate with the gravity of the offence or it is on
the higher side and whether it could be considered for lesser the
punishment. This Court has to take note of aggravating
circumstances and mitigating circumstances while imposing the
capital punishment. Now this Court has to consider the grounds
urged in the reference, which this Court has received for the
consideration of death sentence and also take note of factual
aspects of the case whether the Trial Court has committed an
158
error in imposing the capital punishment and keeping in mind
the principles laid down in the judgments referred supra by the
learned amicus curiae, analyse the material whether the capital
punishment commensurate with the facts of the case or it
requires interference of this Court to modify the same.
150. The learned counsel for the respondent/complainant
i.e., amicus curiae, relied upon the judgment of the Apex Court
in the case of Vasanta Sampat Dupare (supra), wherein the
Apex Court discussed with regard to the reform/rehabilitation
and also the possibility of, when ruled out by circumstances of
the criminal and the crime and also taken note of circumstance
of the criminal and also the crime i.e., rape and murder of 4 year
girl by a 47 year old man and concurrent death sentence
affirmed as the manner in which the crime was committed did
not suggest that appellant, a history-sheeter, could be reformed
and he was likely to remain a menace to society and held that it
is a rarest of rare cases and fit for imposition of death sentence.
There are no mitigating circumstances. It is an act of taking
advantage of absolute innocence. It is not only betrayal of
159
individual trust, but also betrayal of social trust. The act is an
anathema to social balance. The act of appellant shocks judicial
conscience, conscience of society and has a menacing effect on
Society. The girl died due to profuse bleeding due to forcible
sexual intercourse and deliberate assault.
151. The other Apex Court judgment relied upon by the
learned amicus curiae is in the case of Manoharan (supra) in
respect of aggravated penetrative sexual assault by gang of two
and sodomy committed on 10 year old girl by tying her hands
and murder of her 7 year old brother along with her, first by
trying to poison them and then by pushing them into canal when
they were conscious and death sentence was affirmed. The Apex
Court taken note of that balance of aggravating and mitigating
circumstances are against the appellant and taken note of
legislative intent reflected in 2019 Amendment of POCSO Act is
that crimes against children are on rise and must be dealt with
severely. Life imprisonment means imprisonment for natural life.
For aggravated penetrative sexual assault on a child below 12
years of age, minimum sentence has been increased to 20 years
160
and death sentence has also been introduced in the amendment.
The contention that appellant was 23 years of age at the time of
occurrence and belongs to poor family, had aged parents, a first
time offender and he was not mastermind of present crime and
was not initially involved in kidnapping, though later joined and
mitigating circumstances were all taken note of. But held that in
the cases of rape, sodomy and murder of minor, the Court has to
see the statement of objects and reasons and Sections 5(m) and
6 of the POCSO Act. Legislative intent and severity of
punishment in case of crime against minors due to increase in
number of such crimes was taken note and taken note of rape
and sodomy of 10 year old girl and murder of her 7 year old
brother and per majority, confirmed the death sentence.
152. The learned counsel also relied upon the Apex Court
judgment in the case of Sambhubhai Raisangbhai Padhiyar
(supra), wherein the Apex Court taken note of as per certain
injury indicated in the post mortem report, deceased was
subjected to aggressive penetrative sexual assault. There also
found an injury on the prepuce of the penis of the accused. The
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Apex Court also taken note of matching of the blood group
coupled with other circumstantial evidence and invoked the
presumption under Section 29 and 30 of the POCSO Act. The
Apex Court also taken note of conduct of the accused and
regarding death sentence, discussed with regard to substitution
with that of fixed term without remission of 25 years, when
possibility of reformation of accused not completely ruled out.
The learned counsel also relied upon the Apex Court judgment in
the case of Manoj Pratap Singh (supra), wherein it is discussed
with regard to the death sentence, whether to be confirmed/
imposed, or, not, upon appreciation of crime test, criminal test
and rarest of the rare test and taken note of scope of
reformation and rehabilitation, when can be ruled out. Extremely
brutal and merciless rape and murder of physically and mentally
challenged minor of about 7-8 years, wherein also death
sentence is confirmed.
153. Having taken note of the principles laid down in the
judgments referred supra, this Court has to take note of the
judgment of the Apex Court in the case of MUKESH AND
ANOTHER v. STATE OF NCT OF DELHI reported in AIR 2017
162
SC 2161, wherein the case of rape and murder was considered.
This Court can look into the case of the Apex Court in the case of
KARTAR SINGH v. STATE OF PUNJAB reported in (1994) 3
SCC 569, wherein it is held that right to life with human dignity
of person is a fundamental right of every citizen for pursuit of
happiness and excellence. Personal freedom is a basic condition
for full development of human personality. Article 21 of the
Constitution protects right to life which is the most precious right
in a civilized society. The guidelines on mitigating factors has to
be taken note of as discussed by the Apex Court in the case of
BACHAN SINGH v. STATE OF PUNJAB reported in (1980) 2
SCC 684. In the judgment referred supra in the case of
Vasanta Sampat Dupare, with regard to plenary power to
mould relief under Articles 32 and 142 particularly, a discussion
is made in paragraph No.27 that we must also recognize the
evolution of our own constitutional culture. Contemporary Indian
society no longer conceives criminal punishment purely in
retributive terms. The goal of reformation, repeatedly affirmed in
our jurisprudence, presupposes that the legal system will not
foreclose the prospect of moral regeneration unless every
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procedural assurance of accuracy and fairness has first been
scrupulously observed.
154. Having considered the principles laid down in the
judgments, this Court has to take note of the factual aspects of
the case:
(i) It is not in dispute that the incident was taken place
in the broad daylight on 21.11.2021 in between 1.00
p.m. to 1.30 p.m.
(ii) The accused persons were present in the very same
vicinity and it was pre-planned to have forcible
sexual intercourse on the child, knowingfully well
that she is below the age of 12 years.
(iii) The accused No.1 had also purchased chikki from the
shop of P.W.12 on the particular date and given the
same to the victim to secure her and accused No.1
had done the same previously and was witnessed by
the parents and was scolded.
(iv) It is a case of gang rape and all accused Nos.1 to 4
with an intention to satisfy their lust had an eye on
the girl, who is aged about 7 years 7 months, below
the age of 12 years, wherein strict punishment is
provided in view of the amendment made to POCSO
Act.
164
(v) The accused persons forcibly committed the sexual
act on the victim girl one by one and the same is a
brutal act and even taken the life of the victim and
thrown the dead body in the drainage to screen the
evidence.
155. Now this Court has to examine whether it is a fit
case and comes within the purview of rarest of rare case. While
considering the same, the Court has to take note of the
judgment of the Constitution Bench of the Hon'ble Apex Court in
the case of Bachan Singh (supra) while dealing with the capital
punishment, wherein it has laid down the guiding principles to
award death penalty. The Hon'ble Apex Court in the case of
MACHHI SINGH AND OTHERS v. STATE OF PUNJAB reported
in (1983) 3 SCC 470 has reiterated some principle of law,
which are followed by Hon'ble Apex Court and also the
respective High Courts in the later judgments wherein made the
principles into two different compartments, firstly, aggravating
circumstances and secondly, mitigating circumstances.
156. The mitigating circumstances enumerated in the said
judgment of the Hon'ble Apex Court are as follows:
165
(i) The manner and circumstances in and under which
an offence was committed, for example, extreme or
emotional disturbance or extreme provocation in
contradistinction to all these situations in normal
course.
(ii) The age of the accused is a relevant consideration,
but not a determinative factor by itself.
(iii) The chances of the accused not indulging in
commission of the crime again and the probability of
the accused being reformed and rehabilitated.
(iv) The condition of the accused shows that he was
mentally defective and the defect impaired his
capacity to appreciate the circumstances of his
criminal conduct.
(v) The circumstances which, in normal course of life,
would render such a behaviour possible and could
have the effect of giving rise to mental imbalance in
that given situation like persistent harassment or, in
fact, leading to such a peek of human behaviour, in
the facts and the circumstances of the case, the
accused believed that he was morally justified in
committing the offence.
(vi) Where the Court upon proper appreciation of
evidence is of the view that the crime was not
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committed in a preordained manner and that the
death resulted in the course of commission of
another crime and that there was a possibility of it
being construed as consequences to the commission
of the primary crime.
(vii) Where it is absolutely unsafe to rely upon the
testimony of a sole eyewitness though the
prosecution has brought home the guilt of the
accused.
157. The aggravating circumstances which warrant death
penalty enumerated in the judgment are as follows:
(i) The offences relating to the commission of heinous
crimes like murder, rape, armed dacoity, kidnapping,
etc. by the accused with a prior record of conviction
for capital felony or offences committed by the
person having a substantial history of serious
assaults and criminal convictions.
(ii) The offence was committed while the offender was
engaged in the commission of another serious
offence.
(iii) The offence was committed with the intention to
create a fear psychosis in the public at large and was
committed in a public place by a weapon or device
167
which clearly could be hazardous to the life of more
than one person.
(iv) The offence of murder was committed for ransom or
like offences to receive money or monetary benefits.
(v) Hired killings.
(vi) The offence was committed outrageously for want
only while involving inhumane treatment and torture
to the victim.
(vii) The offence was committed by a person while in
lawful custody.
(viii) The murder or the offence was committed to prevent
a person lawfully carrying out his duty like arrest or
custody in a place of lawful confinement of himself or
another. For instance, murder is of a person who had
acted in lawful discharge of his duty under Section
43 of the Code of Criminal Procedure.
(ix) When the crime is enormous in proportion like
making an attempt of murder of the entire family or
members of a particular community.
(x) When the victim is innocent, helpless or a person
relies upon the trust of relationship and social norms,
like a child, helpless woman, a daughter or a niece
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staying with a father/uncle and is inflicted with the
crime by such a trusted person.
(xi) When murder is committed for a motive which
evidences total depravity and meanness.
(xii) When there is a cold-blooded murder without
provocation.
(xiii) The crime is committed so brutally that it pricks or
shocks not only the judicial conscience but even the
conscience of the society.
158. The Apex Court in the case of HARESH MOHANDAS
RAJPUT v. STATE OF MAHARASHTRA reported in (2011) 12
SCC 56, has held that the death sentence may be warranted
where the victims are children and helpless women and the
crime committed is most cruel, inhuman, extremely brutal, and
diabolic. The Apex Court in its judgment in the case of
RAJENDRA PRALHADRAO WASNIK v. STATE OF
MAHARASHTRA reported in 2012 (2) SCC (Cri.) 30, upheld
the death sentence awarded by the Trial Court in a case of rape
and murder of a child aged 3 years by a person aged 31 years.
The Apex Court in the case of B.A.UMESH v. REGISTRAR
169
GENERAL OF HIGH COURT OF KARNATAKA reported in 2011
(1) SCC (Cri.) 801, held that to award death penalty, there
must be something uncommon about the crime, which renders
the sentence of imprisonment for life inadequate. The Court after
drawing balance sheet of aggravating and mitigating
circumstances to take note that the scale of justice tilts in favour
of the prosecution and there are no mitigating factors favouring
the accused to reduce the sentence and then only the Court has
to award the capital punishment if mitigating circumstances not
found in the case. The Apex Court in the case of
K.P.TAMILMARAN v. THE STATE BY DEPUTY
SUPERINTENDENT OF POLICE passed in SLP (Crl.)
No.1522/2023, dated 28.04.2025, to strike a balance
between the imprisonment as well as the death sentence, where
in a case of murder of a young couple and both of them were
administered poison in full view of a larger number of villagers.
The masterminds and the main preparators of this macabre act
were none other than the father and the brother of the girl
Kannagi. The reason behind the murder of this young couple was
170
that Kannagi belongs to the 'Vanniyar' community, had dared to
marry Murugesan, who was a 'Dalit' from the same village.
159. Having considered the principles laid down in the
judgments referred supra and also the judgments relied upon by
the learned amicus curial, this Court has to analyze the material
on record. In the case on hand, the accused persons were
working in a factory and in order to satisfy their lust, they aimed
at a helpless minor girl, aged about 7 years 7 months as per the
documents. This Court has opined that it is a case of rarest of
rare case and comes within the aggravating circumstances of
point Nos.(i), (iv), (vi) and (x) to (xiii).
160. This Court would like to list out the reasons for
coming to a conclusion that it is a case of aggravating
circumstances:
(i) The victim girl was aged about 7 years and 7
months. The accused persons with an intention to
satisfy their lust, formed themselves and had an eye
on the girl, who is below the age of 12 years even
when stringent punishment is provided under the
POCSO Act.
171
(ii) The accused persons formed themselves having an
eye on the girl and gathered in a deceitful manner
securing her providing a chikki, which was purchased
from the shop of P.W.12.
(iii) The accused Nos.1 to 3 have subjected her for
sexual act continuously in a brutal manner, which
has resulted in injuries on the private part of the
child and the same is noticed by the doctor while
conducting the post mortem.
(iv) The victim was innocent, helpless and also a child
and victim was having trust with the accused
persons, who are residing in the very same locality
and she accompanied the accused when chikki was
given to her.
(v) The accused persons have committed gang rape on a
minor girl, who is aged about 7 years and 7 months
continuously, without caring for her life and satisfied
their lust in a brutal manner.
(vi) The accused persons not only committed forcible
sexual act i.e., aggravated sexual act, but further
taken the life of the girl. The same shocks not only
the judicial conscience but even the conscience of
the society.
172
(vii) The accused persons not only committed the
murder, but in order to screen the evidence, took the
body to another room and watched the movement of
the public in the premises and thereafter, to screen
the evidence, shifted the body and thrown the same
into a drainage and while searching the girl, found
that the legs of the victim was appearing in the
drainage.
161. Having considered all these factors into consideration
and materials available on record, even this Court has to strike
balance between mitigating circumstances and aggravating
circumstances. No doubt, the accused persons are young aged
and the same cannot be a ground to come to a conclusion that
they could be imprisoned for life and age is not a determinative
factor by itself and except this circumstance, there is no other
mitigating circumstances. The accused persons inhumanely in a
brutal manner subjected the victim girl, who is aged about 7
years and 7 months for continuous sexual act one by one,
without caring the life of the victim and the same is nothing but
a barbaric act of gang rape. The Court has to take note of
human values while imposing the death sentence as discussed in
173
relation to Article 21 of the Constitution in the case of Manoj
(supra). At the same time, take note of principles laid down in
the judgments in the cases of Bachan Singh and Machhi Singh
(supra) as well as the judgment in the case of Haresh
Mohandas Rajput (supra) where the victims are children and
helpless women and the crime is most cruel, inhuman, extremely
brutal and diabolic. The Court also has to take note of the
judgments, which have been relied upon by the learned counsel
appearing for the complainant/amicus curiae i.e., in the case of
Manoj Pratap Singh (supra), Manoharan (supra) and also
Vasanta Sampat Dupare (supra), wherein it was rape and
murder of a 4 year old girl by 47 year old man. In the case of
Manoharan (supra), not only committed the sexual act on the
girl, who is aged about 10 years and even committed the murder
of a 7 year old boy, who is the brother of the girl. In the case of
Manoj Pratap Singh (supra), the Apex Court has taken note of
extremely brutal and merciless rape and murder of physically
and mentally challenged minor of about 7-8 years.
174
162. In the case on hand, victim is not mentally disabled,
but here is a case of gang rape by accused Nos.1 to 3 along with
accused No.4. But accused No.4 was not subjected to decision of
the Trial Court as after the trial he had escaped. Having taken
note of all these factors into consideration, this Court is of the
opinion that the sentence of life imprisonment renders
inadequate. After considering the material on record and
drawing balance sheet of mitigating circumstances and
aggravating circumstances, the scale of justice tilts in favour of
the prosecution and there are no mitigating circumstances
favouring the accused to reduce the sentence, since it is a gang
rape on a minor girl, who is aged about 7 years and 7 months.
The Court has to take note of the manner in which the criminal
act was committed and the Trial Court has taken note of all
these matters into consideration and such act was done against
a minor girl aged about 7 years and 7 months and it is nothing
but a crime against the society at large. If lesser sentence is
imposed, it will give a wrong message to the society and public
at large and this act of subjecting the minor girl to satisfy their
lust would be encouraged and such act has to be curbed with
175
iron hands. Hence, we are of the view that the Trial Court has
not committed any error in imposing the death sentence and it
requires confirmation as sought by the Trial Judge. Hence, the
points are answered accordingly.
Point No.3:
163. In view of the discussions made above, we pass the
following:
ORDER
(i) Crl.A.No.2216/2024 and Crl.A.No.2246/2024 are dismissed, confirming the death sentence imposed by the Trial Court in allowing Crl.R.C.No.2/2024.
(ii) The accused Nos.1 to 3 shall be hanged by their neck till death.
(iii) The judgment of conviction dated 29.10.2024 and order of sentence dated 07.11.2024 in Spl.C.No.10/2022 passed by the Court of the Additional District and Sessions Judge, FTSC- II (POCSO), Mangaluru, is confirmed.
(iv) The Registry is directed to furnish a copy of this judgment to accused Nos.1 to 3 through jail authorities free of cost and inform them of 176 their right to appeal to the Hon'ble Supreme Court and transmit the records to the Trial Court along with a copy of this judgment.
(v) The Registry is directed to pay the fee of Rs.10,000/- to the amicus curiae Sri Tejas N for effective rendering of his service in assisting the Court in disposal of the case.
(vi) The Registry is directed to send the records to the Trial Court to retain the same for continuation of trial of accused No.4, who is absconding.
Sd/-
(H.P. SANDESH) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE ST/SN/MD