Madhya Pradesh High Court
Ajju @ Ajay vs The State Of Madhya Pradesh on 19 May, 2017
(1)
Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Division Bench (1)Hon'ble Shri Justice J.K. Maheshwari
(2)Hon'ble Shri Justice Rajendra Mahajan
CRIMINAL REFERENCE No. 1/2014
In Reference received from
the Additional Sessions
Judge, Pipariya, District
Hoshangabad M.P. under
Section 366 of the Cr.P.C.
for confirmation of death
sentence.
VERSUS
1. Ashok S/o Bhairo Singh Purviya
Patel, aged 29 years, R/o
Village Bhatti, P.S. Pipariya,
District Hoshangabad (M.P.)
2. Ramjeevan S/o, Suraj Prasad
Kaurav, aged 29 years, R/o
Village Bharpura, District Bhind,
at present R/o Village Gardha,
P.S. Gadarwara, District
Narsinghpur (M.P.)
3. Kapil, S/o Chandan Singh
Purviya, aged about 27
years, R/o Mahua, Ajneri,
P.S. Pipariya, District
Hoshangabad (M.P.)
4. Ajju alias Ajay, S/o
Narsinghdas Bairagi, aged 27
years, R/o Village Ulghan,
P.S. Paloha Bada, District
Narsinghpur (M.P.), at present
R/o Radha Kishan Ward,
Pipariya, District
Hoshangabad (M.P.)
accused persons
(2)
Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14
CRIMINAL APPEAL NO.3538/2014
Ashok S/o Bhairo Singh Purviya
Accused-Appellant
with
CRIMINAL APPEAL NO.1075/2015
Ramjeevan S/o Suraj Prasad
Kaurav
Accused-Appellant
with
CRIMINAL APPEAL NO.3512/2014
Kapil S/o Chandan Singh
Purviya
Accused-Appellant
with
CRIMINAL APPEAL NO.3598/2014
Ajju alias Ajay S/o
Narsinghdas Bairagi
Accused-Appellant
Versus
State of M.P. through P.S.
Pipariya, District
Hoshangabad (M.P.)
Respondent
.....................................................................................
For Prosecution : Smt. Divya Kirti Bohrey, learned
Government Advocate assisted by
Smt. Manjeet Chakkal, learned Panel
Lawyer.
(3)
Criminal Reference No.1/2014 and
Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14
For accused-appellant : Shri S.K. Gangrade, learned counsel.
Ashok
For accused-appellant : Shri P.S. Gaharwar, learned counsel.
Ramjeevan
For accused-appellant : Shri Krishna Dev Singh, learned
Kapil counsel.
For accused-appellant : Shri Amit Dubey and Shri Abhinav
Ajju @ Ajay Dubey, learned counsel.
.....................................................................................
J U D G M E N T
(Pronounced on the 19 t h day of May, 2017) As per Rajendra Mahajan, J.
Since the aforesaid criminal reference and criminal appeals have arisen out of one and the same judgment dated 14.11.14 passed by the learned Additional Sessions Judge, Pipariya, District Hoshangabad in Sessions Trial No.200/10, they are being decided by this common judgment.
2. Vide the impugned judgment, the learned ASJ has held that the period between 13.02.10 at about mid-noon and 15.02.10 at about 5:00 p.m. in the agricultural field of Durjan Singh (PW-14) situated nearby village Samnapur the accused- appellants committed gang-rape upon the deceased- prosecutrix, and later murdered her and her companion deceased Deepak in furtherance of common intention to conceal the evidence of gang-rape. Having held so, the learned ASJ has convicted and sentenced the accused- (4)
Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 appellants as under:-
Sr. Name of
Penal sections of Fine Default jail
No. accused- Jail sentences
Conviction sentences sentences
appellants
Imprisonment
(i) 376(2)(g) IPC Rs.1000/- R.I. for six months
for life
(ii) 302 r.w. 34 IPC Death sentence Rs.1000/- for For each count 1 Ashok (two counts) for each count each count R.I. for six months R.I. for seven
(iii) 201 IPC Rs.1000/- R.I. for six months years Imprisonment
(i) 376(2)(g) IPC Rs.1000/- R.I. for six months for life
(ii) 302 r.w. 34 IPC Death sentence Rs.1000/- for For each count 2 Ramjeevan (two counts) for each count each count R.I. for six months R.I. for seven
(iii) 201 IPC Rs.1000/- R.I. for six months years Imprisonment
(i) 376(2)(g) IPC Rs.1000/- R.I. for six months for life
(ii) 302 r.w. 34 IPC Death sentence Rs.1000/- for For each count 3 Kapil (two counts) for each count each count R.I. for six months R.I. for seven
(iii) 201 IPC Rs.1000/- R.I. for six months years Imprisonment
(i) 376(2)(g) IPC Rs.1000/- R.I. for six months for life
(ii) 302 r.w. 34 IPC Death sentence Rs.1000/- for For each count 4 Ajju @ Ajay (two counts) for each count each count R.I. for six months R.I. for seven
(iii) 201 IPC Rs.1000/- R.I. for six months years
3. The learned Trial Judge has sent the proceedings for confirmation of sentences of death awarded to the accused- appellants in order to comply with the provisions of Section 366 of the Cr.P.C., whereas being aggrieved by and dissatisfied with the impugned judgment, each of the accused-appellants has preferred a separate appeal under Section 374 Cr.P.C.
4. The prosecution case as unfolded during the trial is narrated below in detail as it is entirely based upon the (5) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 circumstantial evidence:-
(4.1) On 15.02.10, Rambagas (PW-21), the Kotwar of village Samnapur, gave an oral intimation at the Police Station Pipariya that two unknown dead bodies of young persons, one male and one female, in semi-naked state are lying in the agricultural field owned Durjan Singh (PW-14), the resident of village Samnapur, among the standing wheat-crop. The dead body of man is identified as that of Deepak s/o Babulal Kushwaha a resident of village Kalmesera of Hoshangabad district and the dead body of the woman is not identified. Upon the aforesaid intimation, Sub Inspector Rai Singh Soni (not-
examined--due to his death in a vehicular accident before recording of his statement in the trial court.) recorded marg intimation Ex.P-19 at Nos.12/10 and 13/10 under Section 174 Cr.P.C.
(4.2) In the morning of 16.02.10, Rai Singh Soni reached the place of occurrence. First he prepared a spot map Ex.P-33 of the place where the dead bodies were lying in the presence of Laxman singh (PW-28). Thereafter, he prepared (6) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 the inquest proceedings Ex.P-20 and Ex.P-34 of dead bodies of Depak and unknown woman respectively in the presence of witnesses namely Dinesh (PW-22), Laxman Singh (PW-28), Ram Singh (PW-30), Rambagas (PW-21) and Narayan Prasad (PW-51). The witnesses opined that both the deceased were murdered and the woman was subjected to rape before being murdered. He also prepared Panchnamas Ex.P-22 to Ex.P-25, showing the signs of scuffles, in the presence of Laxman Singh and Rambagas. Vide seizure memo Ex.P-26, he seized the deceased woman's clothes namely underwear, Salwar, Dupatta (Stole) and Kurti which were in torn condition and upon which stains of blood and semen were present, as also a bunch of hair, some pieces of ears of wheat (Gehu Ki Bali) and soil smeared with her vaginal swab. He also noticed that a stump of ears of wheat was partly inside her vagina. Be it noted that he had also recorded his said observations in the aforesaid seizure memo. Vide seizure memo Ex.P-27, he seized deceased Deepak's torn jeans and a belt (7) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 as also blood stained soil and plain soil. Vide seizure memo Ex.P-28, he seized a gent's chappal of right foot and a purse. Vide seizure memo Ex.P-29, he seized a motorcycle bearing registration No. MP-05-MP-1371 with deflated tyres which was parked some distance away from the place of occurrence. In the course of investigation, it is found that the motorcycle was registered in the name of Laxmi Narayan (PW-26), who happens to be nephew (the sister's son) of deceased Deepak. He prepared the aforesaid seizure memos in the presence of Rambagas and Laxman Singh. Pratap Singh (PW-
58), the photographer of the FSL Unit, took the photographs Ex.P-106 to Ex.P-123 of both the dead bodies from various angles.
(4.3) Having completed all the legal requirements at the place of occurrence, Rai Singh Soni sent both the dead bodies for post-mortems to the Community Health Center Pipariya, where on 16.02.10 Dr. A.K. Agrawal (PW-46) performed autopsy on the dead body of deceased Deepak, and he and Dr. Anita Sahu (not-examined) (8) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 jointly conducted post-mortem examination on the dead body of the deceased-prosecutrix. Ex.P-66 and Ex.P-67 are the post-mortem reports of deceased Deepak and the deceased- prosecutrix respectively. As per the post-mortem examinations, they suffered homicidal death and the deceased-prosecutrix was subjected to rape before her death.
(4.4) Dr. A.K. Agrawal also prepared a slide of sticky liquid deposited on deceased Deepak's glans penis and cut off finger-nails of his both hands and he and Dr. Anita Sahu also prepared a slide of vaginal swab of the deceased-prosecutrix, cut off a few strains of her pubic hairs, finger-nails of her both hands for forensic tests/examinations.
(4.5) On the basis of the outcome of marg inquiry and postmortem reports, on 16.02.10 Rai Singh Soni lodged an FIR being Ex.P-88 and registered a case at Crime No.63/2010 under Sections 302, 376, 201 and 34 of the IPC against an unknown person.
(4.6) On 17.02.10, Sushila Bai (PW-27) identified the (9) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 dead body of the deceased-prosecutrix, as her daughter, aged about 17 years, whereupon identification memo Ex.P-31 was prepared by Rai Singh Soni.
(4.7) The investigation of the case was started under the supervision of Rajesh Raghuwanshi (PW-57), the Sub Divisional Police Officer, Pipariya on account of the seriousness and gravity of the crime. He constituted an investigating team (for short 'the team') comprising Rai Singh Soni, Dinesh Singh Chouhan @ D.S. Chouhan (PW-56), the S.I. of Police Station Pipariya, Malkit Singh (PW-59), the SHO of Police Station Shohagpur and Umed Singh (PW-54) ASI of Police Station Pipariya.
(4.8) At the preliminary stage of investigation, the team came to know that both the deceased had mobile phones with them at the time of incident, but they were not found on the spot or with their dead bodies or nearby the place of occurrence. Therefore, the perpetrator(s) of crime may have definitely taken the mobile phones of the deceased with them after the (10) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 commission of ghastly crime and they may be using the mobile phones. That is why, they thought that the culprits may be nabbed with the help of International Mobile Equipment Identity (for short 'IMEI') numbers of mobile phones, mobile numbers and call-details records thereof. (4.9) On 22.02.10, Rai Singh Soni seized a carton/box of a mobile phone of Motorola company from the possession of Sushila Bai, the mother of deceased-prosecutrix, vide seizure memo Ex.P-32, whereupon IMEI No.35648-40028-49822 is printed. However, the case diary and the call details reveal that he made the mistake while noting IMEI number in the seizure memo Ex.P-
32. The last digit is, in fact, zero instead of two. Thus, the correct IMEI number, which is printed on the carton, is 35648-40028-49820.
(4.10) The team also traced that deceased Deepak purchased a prepaid SIM from the Idea Cellular Limited (for short the Idea) in his name vide the application Ex.P-86 and he was allotted the SIM No.8991787107084727456 and Mobile No.97547- 75495.
(11)
Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 (4.11) As per the call details of IMEI No.35648-40028-
49820 supplied by the service provider companies, namely, the Bharti Airtel Limited (for short 'the Airtel') and the Vodafone vide Ex.P-81 and Ex.P-60 respectively. Two SIMs bearing Mobile Nos.96850-48589 and 95841-47788 were used for a period between 14.02.10 and 23.02.10 in the mobile phone of the said IMEI number.
(4.12) As per the call details Ex.P-77, Ex.P-80 and Ex.P-82 provided by the Airtel, SIM of Mobile No.97552-33915 was used in the mobile phone bearing IMEI No.35845-50206-59230 for a period between 10.02.10 and 28.02.10 (as per Ex.P-77, Ex.P-80) and SIM of Mobile No.96308-46291 was used in the mobile phone of aforesaid IMEI for a period between 01.02.10 and 23.02.10 (as per Ex.P-82).
(4.13) Vide Ex.P-102 to Ex.P-105, the Airtel also provided particulars as to whose name SIMs of some of mobile numbers are issued.
(4.14) The Idea provided call details Ex.P-142 of SIM of Mobile No.97547-75495 for a period between (12) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 01.02.10 and 16.02.10 which was installed in a mobile phone bearing IMEI No.35845-50206- 59230.
(4.15) On the basis of aforesaid call details and Ex.P-86, Malkit Singh, a member of the team, found that the Airtel has allotted SIM of Mobile No.97547-75495 to deceased Deepak in his own name and he had installed the SIM in the mobile phone bearing IMEI No.35845-50206-59230. With that mobile phone, deceased Deepak talked last time on 13.02.10 at about 2:58 p.m. At that time, his mobile phone was in the range of Idea mobile tower located in village Dongrykheda. Under the range of said tower, the place of occurrence falls. Later, the SIM of mobile number 96308-46291 was installed in the mobile phone. He also found that in the mobile phone of the deceased-prosecutrix bearing IMEI No.35648-40028-49820 SIM of Mobile Nos. 96850-48589 was installed and used.
(4.16) The team traced that SIM of Mobile No.95841- 47788 was purchased by accused-appellant Kapil in the name of his maternal uncle Rajesh (13) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 Purvalia (PW-13) from Vikram Singh (PW-49), who was the authorised distributor of SIMs of the Vodafone.
(4.17) On 24.02.10, Rai Singh Soni seized a mobile phone of the Sigmatel company with two mobile SIMs of the Airtel bearing Mobile Nos. 96308- 46291 and 97552-33915 from the possession of Ashok s/o Bhurelal (PW-49) vide the seizure memo Ex.P-6 in the presence of Ajab Singh (PW-10) and Santosh (PW-50).
(4.18) On the basis of the information as stated in the aforesaid para, on 02.03.10 Dinesh Singh, a team member, arrested accused-appellant Kapil vide the arrest memo Ex.P-53. On the same day, he interrogated him in the presence of Lakhanlal (PW-31) and Halke Bhaiya (PW-37). In the course of interrogation, he disclosed amongst other things that he and accused-appellant Ajju @ Ajay had taken the mobile phones of the deceased-prosecutrix and deceased Deepak respectively. He also disclosed that the SIM installed in the mobile phone of the deceased- prosecutrix was removed, and he installed the (14) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 new SIM bearing Mobile No.96850-48589, which was given to him by accused-appellant Ajju. He used the said SIM for a period between 14.02.10 and 16.02.10. Later, he threw the original SIM and the SIM given by accused-appellant Ajju in a water canal flowing nearby village Chirmeta. Later, he used the mobile phone with SIM of Mobile No.95841-47788. This SIM was given to him by his brother Deepak (not-examined). He also disclosed that his soil stained pants and shirt were kept in his house. Upon the aforesaid information, Dinesh Singh prepared disclosure statement Ex.P-45. Pursuant to which, he seized one mobile phone of Motorola company with a SIM bearing Mobile No.95841-47788 and soil stained pants and shirt at his instance from his house in the presence of aforesaid prosecution witnesses vide the Ex.P-47.
(4.19) On 02.03.10, Dinesh Singh arrested accused-
appellant Ashok vide the arrest memo Ex.P-51 in the presence of Lakhanlal and Halke Bhaiya. On the same day, he interrogated him in their presence. Whereupon, accused-appellant Ashok (15) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 revealed amongst other things that he had removed a pair of silver payals (anklets) of the deceased-prosecutrix and kept the payals, his own mobile phone with the SIM, which he used before and after incident, and soil stained pants and shirt in various places of his house.
Thereupon, Dinesh Singh drew his disclosure statement Ex.P-41. On 05.03.10, he recovered a mobile phone of Nokia Company model No.1028 with SIM of Mobile No.95755-31130, the payals and soil stained clothes vide the recovery memo Ex.P-42 at his instance in the presence of aforesaid prosecution witnesses.
(4.20) On 02.03.10, Dinesh Singh arrested accused-
appellant Ramjeevan vide the arrest memo Ex.P-52 in the presence of Lakhanlal and Halke Bhaiya. On being interrogated by Dinesh Singh, he disclosed that he had killed deceased Deepak by hitting with a big stone on his head and threw it in the field where the crime was committed, and he had hidden his soil stained pants and shirt in the agricultural field of one Kapil (not-examined) situated on the out-skirts (16) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 of village Chirmeta. Upon the said information, Dinesh Singh drew disclosure statement Ex.P-43 and recovered the aforesaid articles at his instance vide the memos Ex.P-50 and Ex.P-57 in the presence of the aforesaid prosecution witnesses.
(4.21) On 13.03.10, accused-appellant Ajju was arrested by Dinesh Singh vide the arrest memo Ex.P-12 in the presence of Sheikh Yakub (PW-
16) and Narsinghdas (not-examined). On the same day, he was interrogated by him in the presence of Laxman Singh and Halke Bhaiya. He disclosed amongst other things that he took deceased Deepak's mobile phone, his shoes and a pocket diary. He left his own chappals at the place of occurrence as the same got stuck in mud. Later, he threw the shoes in one agricultural field. He sold the mobile phone to Ashok Raghuvanshi (PW-39) at Rs.450/-. He also stated that at the relevant time he had a stolen motorcycle make Hero Honda model CD-Dawn, which he has kept in the house of Pooja's grand- father. Thereupon, Dinesh Singh drew his (17) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 disclosure statement Ex.P-35.
(4.22) On 13.03.2010, Dinesh Singh vide the seizure memo Ex.P-36 seized the shoes of deceased Deepak from the agricultural field of one Pop Singh Raghuvanshi (not-examined), which is situated on the out-skirts of village Kheriya, at his instance in the presence of Laxman Singh and Hakle Bhaiya. On 15.03.2010, he seized one motorcycle without registration plate make Hero Honda CD-Dawn, soil stained pants and shirt at his instance from the house of Pooja's grand- father in the presence of Laxman Singh and Halke Bhaiya vide the seizure memo Ex.P-37, but could not recover the pocket diary and the chappals at his instance. In this connection, he prepared search Panchnamas Ex.P-38 and Ex.P-39.
(4.23) On 21.03.2010, Basant Kumar (PW-32) held the test identification parade of seized articles in the presence of Laxman Singh (PW-28) and Dinesh s/o Chhotelal (PW-23). In the identification parade, Meena Bai (PW-9), the wife of deceased Deepak, identified a pair of shoes, one mobile (18) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 phone, one belt and one purse of her husband. Thereupon, identification memo Ex.P-5 was prepared by said Basant Kumar.
(4.24) On 02.05.2010, accused-appellants, namely, Kapil, Ashok and Ramjeevan and on 14.03.2010 accused-appellant Ajju were medically examined by Dr. A.K. Agrawal (PW-46), and he gave the reports Ex.P-69, Ex.P-72, Ex.P-73 and Ex.P-74 respectively to the effect that they are capable of doing sexual intercourse. He also noticed some minor healed-up injuries on the person of accused-appellant Ramjeevan, which he mentioned in his report Ex.P-73. In addition to the aforesaid examinations, he prepared slides of their semen and cut off a few of their pubic hairs and handed them over to Yashwant (PW-19) and Sheikh Yakub (PW-16) in sealed packets for forensic tests.
(4.25) On 05.05.2010, Kishore Shah (PW-33) held the test identification parade of seized articles in the presence of Harkishan (PW-18) and Preetam Singh (PW-44), in which Sushila Bai, the deceased-prosecutrix's mother, identified one (19) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 mobile phone and one pair of payals as those of the deceased-prosecutrix. In this regard, he prepared identification memo Ex.P-15 .
(4.26) In the course of investigation, Rai Singh Soni, Umesh Singh (PW-54) and Dinesh Singh (PW-56) have recorded the case diary statements of all the prosecution witnesses.
(4.27) During the course of investigation, the police got statements of Ashok s/o Bhurelal and Ramvilash recorded under Section 164 Cr.P.C. and the same are exhibited as Ex.P-62 and Ex.P-64 respectively.
(4.28) The incriminating articles mentioned in the letter Ex.P-144 were sent to the FSL Sagar for the purpose of forensic tests and the DNA analysis/typing/profiling/finger-printing . There- upon, the FSL sent the DNA report Ex.P-143 and one unexhibited report pertaining to examinations of the samples of soil collected from the place of offence and soil-stains found on the clothes of the accused-appellants. The DNA report Ex.P-143 has confirmed that the semen found in the vaginal swab of the (20) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 deceased-prosecutrix and on her underwear is of all the accused-appellants in addition to absconding accused persons, namely, Vimlesh and Munda @ Parsram, who have absconded in the course of trial on 16.08.2013 (see para 8 for detail).
5. Upon the seizure of incriminating articles at the instances of the accused-appellants and absconding accused Munda @ Parsram and Vimlesh and the DNA test report Ex.P-143, the team arrived at the ultimate conclusion that the accused-appellants and the aforesaid absconding accused persons had committed the ghastly crime. On 28.05.10, the police filed the charge-sheet against the accused-appellants and the absconding accused persons under Sections 302, 376(2)(g), 201 and 34 IPC in the court of A.K. Nagotra, the Judicial Magistrate First Class, Pipariya. The learned Magistrate committed the case to the Sessions Court vide the committal order dated 23.06.2010. Thereupon, the case is registered as Sessions Trial No.200/2010 and is made over to the court of Additional Sessions Judge, Pipariya.
6. The learned ASJ framed the charges against the accused-appellants and absconding accused persons under Sections 376(2)(g), 302 r.w. 34 (two counts) in the (21) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 alternative 302 (two counts), simpliciter, and 201 IPC. They denied the charges and claimed to be tried.
7. The prosecution examined 61 witnesses, exhibited 144 documents and marked all the seized articles in the support of its case, whereas the defence exhibited 6 documents and examined one witness Dr. Sudhir Jaisani (DW-1) in their defence. In the examinations under Section 313 Cr.P.C., the accused-appellants denied all the incriminating evidence and circumstances appearing against them in the case. However, they admitted their arrests in the case. They have taken the common defence of false implication in the case.
8. It is worthwhile to mention at this stage that when the case was posted for final arguments accused Vimlesh and Munda @ Parasram have escaped from the custody of Sub- Jail Pipariya on 16.08.2013. The trial court has declared them absconders vide order dated 06.06.2014 and ordered to separate their trial.
9. Upon the evaluation of evidence in the impugned judgment, the learned ASJ has found the accused-appellants guilty for committing gang-rape upon the deceased- prosecutrix and in furtherance of causing disappearance of the evidence of the gang-rape they have murdered her and deceased Deepak. Upon the aforesaid findings, the learned (22) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 ASJ has convicted and sentenced the accused-appellants as stated in para 2 of this judgment.
10. We have heard arguments advanced by the learned counsel for the parties at length. For the purpose of convenience, we categorize broadly their arguments under two heads "first" on the point of conviction and "second" on the point of sentence .
Point No.1
11. Smt. Divyakirty Bohre, the learned Government Advocate, has submitted that the prosecution case is entirely based upon the circumstantial evidence, yet it has proved the guilt of the accused-appellants by unimpeachable evidence and if all the circumstances, which are of conclusive nature and tendency and which are not capable of being explained, are put together, they form a complete chain pointing unerringly towards the guilt of the accused-appellants. She submitted that the DNA report Ex.P-143 itself is capable of proving conclusively the guilt of the accused-appellants. As to reliability of the DNA report, she submitted that as per the research carried out with the exception of identical twins not two individuals have the same DNA blue print. She submitted that it is not the defence of any of the accused-appellants that he has twin siblings. Hence, the aforesaid possibility (23) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 does not exist in the case. She submitted that the DNA tests are carried out on the basis of the DNA samples taken from the semen of the accused-appellants. As per available research data, there is one chance in 300 million that the semen samples could have come from someone other than the specific individual. In this regard, the learned counsel has placed a research paper on record. She submitted that in the cases of Kamti Devi Vs. Poshi Ram , (2001) 5 SCC 311, Santosh Kumar Singh Vs. State through CBI , (2010) 9 SCC 747, and Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik , AIR 2014 SC 932, the Supreme Court has observed that the DNA report must be accepted as scientifically accurate and exact science. She submitted that the apex Court in the case of Anil Vs. State of Maharashtra , (2014) 4 SCC 69, affirmed the conviction of the accused-appellant under Section 377 IPC placing reliance on the DNA report and a Division Bench of this High Court in the case of Jitendra @ Jeetu and others Vs. State of M.P. , 2014 (5) MPHT 45, confirmed the death sentence awarded to the appellants placing mainly reliance on the DNA report. She submitted that in the present case, the DNA report confirms that the accused-appellants committed gang-rape upon the deceased-prosecutrix. She also brought to our notice that the U.S. Supreme Court in the (24) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 case of United States Vs. Jakobetz , [955 F.2d 786 (2d Cir. 1992)] had upheld the conviction of the rapist only on the basis of DNA evidence available against him. She submitted that the defence has not challenged seriously in the cross- examination of Dr. A.K. Agrawal (PW-46) that both the deceased had suffered homicidal death. She concluded her arguments by saying that the order of conviction passed by the learned ASJ is based upon proper appreciation of evidence. Hence, there is no need on the part of this court to interfere with it.
12. Learned counsel for accused-appellant Ashok has submitted that Lakhanlal (PW-31) and Halke Bhaiya (PW-37) are the witnesses of all the arrest memos, the disclosure statements and the seizure/recovery memos of the accused- appellants including the absconder accused persons. Lakhanlal is a permanent resident of village Kalmesera of which deceased Deepak was also resident (as per para 16 of his deposition). Halke Bhaiya is the cousin-brother of deceased Deepak (as per para 20 of his deposition). Hence, they are not independent witnesses of disclosure statement Ex.P-41 and recovery memo Ex. P-42, therefore, they are not reliable witnesses. He submitted that an investigating officer tends to do padding of the prosecution case. Under the (25) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 circumstances, the testimony of Dinesh Singh, who is the author of aforesaid disclosure statement and recovery memo, cannot be relied upon. Learned ASJ has wrongly relied upon the recoveries of a pair of payals, a mobile phone and soil stained clothes at the instance of accused-appellant Ashok. He submitted that as per the identification memo Ex.P-15, Kishore Shah (PW-33) conducted identification parade for the seized articles. But, he has completely denied in his evidence to have conducted the identification parade and to have got the articles identified by Sushila Bai (PW-27), the mother of the deceased-prosecutrix. Moreover, she has admitted in her evidence that she had identified the aforesaid articles at the police station. As per identification memo, the identification was held in the presence of Harkishan (PW-18) and Preetam Singh (PW-44). Harkishan has admitted that he is the maternal-uncle of the deceased-prosecutrix in para one of his deposition. Preetam Singh has admitted in his cross- examination that he has merely put his signature upon the identification memo at the police station. Since the identification of the seized articles were not conducted following the due procedure, it is doubtful that the articles namely payals and mobile phone belong to the deceased- prosecutrix. He submitted that the prosecution had sent soil- (26)
Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 stained clothes seized from the possessions of the accused- appellants to FSL Sagar in order to ascertain whether the samples of soil collected from the place of crime and stains of soil found on their clothes are same in the texture and composition. The FSL report thereof is on record. But the prosecution has not exhibited it in the course of trial. The FSL report being of scientific nature falls under Section 293 Cr.P.C. and, therefore, it is admissible in evidence as per provision of Section 294 Cr.P.C. He submitted that for the aforesaid reasons the defence can rely upon the unexhibited report. In this regard, reliance is placed by him upon the decisions of this court rendered in cases of Brijlal Ghosi and another Vs. State of M.P. , ILR (2012) MP 1351, and State of M.P. Vs. Ghanshyam , 2008 Cr.L.J. 107,. He submitted that according to the report, stains of soil found on the seized clothes of accused-appellant Ashok and the samples of soil collected from the place of occurrence are different in the texture and composition. Thus, the FSL report disproves completely the presence of accused-appellant Ashok at the place of occurrence. He submitted that the prosecution has not proved satisfactorily that the slide of vaginal swab of the deceased-prosecutrix and the slide of accused-appellant Ashok's semen were prepared taking all the necessary (27) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 precautions and they were sealed properly before sending to the FSL. In these circumstances, it is not safe to place absolute reliance upon the DNA report Ex.P-143. Upon the aforesaid arguments, he submitted that there is no cogent and concrete evidence to connect accused-appellant Ashok to the crime, therefore, the impugned judgment insofar as it relates to accused-appellant Ashok is liable to be set aside.
13. Learned counsel for accused-appellant Ramjivan has adopted the arguments raised by learned counsel for accused-appellant Ashok insofar as the arguments support his case. Hence, there is no need to recapitulate the arguments. He submitted that pursuant to disclosure statement Ex.P-43 of accused-appellant Ramjivan, seizing officer Dinesh Singh had seized a stone near the place of occurrence and his soil- stained clothes vide the seizure memos Ex.P-44 and Ex.P-57 respectively. The police did not send the seized stone to the FSL for forensic test to ascertain whether it has stains of human blood. Since stones of all sizes are found everywhere, the seizure of a stone at his instance does not have any evidentiary value without the forensic test. He submitted that as per the unexhibited report of the FSL, the composition of soil collected from the place of occurrence and the stains of soil found on his seized clothes are different. Hence, the (28) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 seizure of his soil-stained clothes does not connect him with the crime. Upon these arguments, he submitted that there is no evidence at all on record to connect accused-appellant Ramjivan even remotely to the crime. Therefore, the impugned judgment deserves to be set aside against Ramjivan.
14. Learned counsel for accused-appellant Kapil has also adopted the arguments advanced by learned counsel for accused-appellant Ashok to the extent which has direct relevancy to his case. He submitted that Dinesh Singh recovered one mobile phone of the Motorola Company with SIM of Mobile No.95841-47788 and seized his soil-stained clothes vide the seizure memo Ex.P-47 from his house in pursuance of the disclosure statement Ex.P-45. As per call details Ex.P-60, the SIM of aforesaid mobile number was installed in a mobile phone bearing IMEI No.35648-40028- 49820, whereas Rai Singh seized a carton of mobile phone of the Motorola Company from the deceased-prosecutrix's mother Sushila Bai bearing IMEI No.35648-40028-49822 vide the seizure memo Ex.P-32. Thus, he had not recovered the mobile phone from the possession of accused-appellant Kapil, which was alleged to be in possession of the deceased- prosecutrix at the time of incident. He submitted that as per (29) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 the unexhibited FSL report, the composition of soil found on his seized clothes are different from the composition of soil collected from the place of occurrence. Hence, the seizure of his soil-stained clothes does not have any evidentiary value. With these submissions, learned counsel submitted that there is no evidence on record to connect accused-appellant Kapil to the crime. He is, therefore, wrongly convicted and sentenced.
15. Learned counsel for accused-appellant Ajju @ Ajay has also supported the arguments raised on behalf of accused- appellant Ahsok, insofar as they are relevant to his case. He submitted that on 24.02.10 vide the seizure memo Ex.P-6 Rai Singh seized one mobile phone of the Sigmatel Company and two SIMs of Mobile Nos.96308-46291 and 97552-33915 from the possession of Ashok (PW-39), whereas the disclosure statement Ex.P-35 of him was recorded by Dinesh Singh on 13.03.10 in which he revealed first time amongst other things that he had sold the mobile phone of deceased Deepak to aforesaid Ashok at Rs.450/-. If these facts are put together, he submitted, it is crystal clear that the mobile phone was seized about 17 days prior to the recording of his disclosure statement Ex.P-35. This fact proves amply that the mobile phone was not recovered at his instance. He submitted that (30) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 Ashok (PW-39) has denied in his evidence that accused- appellant Ajju had sold him the mobile phone. Seizure witnesses namely Ajab Singh (PW-10) and Santosh (PW-50) s/o Tularam have also not supported the seizure of mobile phone and aforesaid SIMs from the possession of said Ashok. They are also declared hostile by the prosecution. He submitted that there is no cogent and reliable evidence that the seized mobile phone belongs to deceased Deepak. He submitted that Dinesh Singh recovered deceased Deepak's shoes vide the memo Ex.P-36 on the basis of his disclosure statement Ex.P-35 from the agricultural field of one Pohap Singh Raghuvanshi. However, the prosecution had not made him a witness in the case. Laxman Singh and Halke Bhaiya, who are the witnesses of disclosure statement Ex.P-35 and seizure memo Ex.P-36, are interested witnesses. Hence, the recovery of deceased Deepak's shoes at the instance of him are not proved beyond doubt. He submitted that vide the seizure memo Ex.P-37, Dinesh Singh seized one motorcycle and soil-stained clothes at the instance of him. There is no evidence on record that the seized motorcycle was used in the commission of offence. As per the unexhibited FSL report, the soil stains found on the clothes of him are entirely different from the soil collected from the scene of crime in (31) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 composition. Hence, the seizure of his clothes does not connect him to the crime. As such, there is no evidence worthy of credence on record as to the involvement of him in the crime. Hence, he is convicted and sentenced upon erroneous findings.
Point two
16. Learned Government Advocate has submitted that as per the DNA report Ex.P-143, in the vaginal swab and on the underwear of the deceased-prosecutrix traces of semen of not only all the four accused-appellants, but also both the absconding accused persons are found. Thus, it proves that all the six perpetrators committed gang-rape upon her. As per the post-mortem reports of both the deceased, the deceased- prosecutrix suffered homicidal death by strangulation, whereas deceased Deepak suffered homicidal death on account of fracture in the temporal bone of his head. Thus, the mode of their deaths proves that they were murdered in a cruel and barbaric manner. As such, all the four accused- appellants and both the absconding accused are beasts in the garb of human bodies. She submitted that in recent times many cases are reported in the newspapers in which victims are first raped/gang-raped and thereafter they are murdered by rapists with the criminal intent that they could not come (32) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 forward to give evidence against them in the courts. In the instant case, the accused-appellants committed murder of the deceased-prosecutrix and deceased Deepak with the aforesaid criminal intent. In the circumstances, there is a crying need for sending messages on the part of the courts to the rapists that the courts will award them only death sentences in such type of cases. With these submissions, she prayed for confirmation of death sentences awarded to the accused- appellants. In support of her submissions, she relied upon the following cases in which death sentences are confirmed; In reference Vs. Guddu @ Dwarikendra , (2012) 2 MPHT 182 DB (MP), State of M.P. Vs. Shyam Singh @ Bhima , 2013 Cr.L.R. (M.P) 79, In reference Vs. Sunil Balai , 2013 Cr.L.J. (M.P) 791, Mofil Khan and another Vs. State of Jharkhand , (2015) 1 SCC 67, Vasanta Sampat Dupare Vs. State of Maharashtra , (2015) 1 SCC 253, and Shatnam Vs. State of U.P. , (2015) 6 SCC 632,.
17. Per contra, learned counsels for the accused- appellants have submitted in one voice on the point of death penalty that the instant case does not pass the test of "the rarest of rare case" as laid down by the Supreme Court in para 39 of its decision rendered in the case of Machhi Singh and others Vs. State of Punjab , (1983) 3 SCC 470, and the (33) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 guidelines given by the Supreme Court in the aforesaid case and in the case of Bachan Singh Vs. State of Punjab , (1980) 2 SCC 684,. They further submitted that the decree of brutality in committing of murder and the numbers of murders are also not the criteria for awarding death sentence, placing reliance upon the law laid down by the Supreme Court in the cases of Panchsheel Vs. State of U.P. , (1998) 7 SCC 177, Omprakash Vs. State of Haryana , (1999) 3 SCC 19, and Ram Pal Vs. State of M.P. , (2003) 7 SCC 141,. Upon these submissions, they urged that if this court confirms the findings of convictions and sentences under Section 302 r.w. 34 (two counts) as imposed by the trial court, then each of the accused- appellants be sentenced for life imprisonment in place of death sentence thereunder.
18. After being heard learned counsels for the parties at length, we have to satisfy ourselves first whether the trial court has rightly convicted the accused-appellants for the offences punishable under Sections 376(2)(g), 302 r.w. 34 and 201 IPC in view of the law laid down by the Supreme Court in the case of Mohinder Singh Vs. State of Punjab , 2013 Cr.L.J. 1559,.
19. Upon the perusal of the impugned judgment, we find that it suffers from verbosity and the learned ASJ has not (34) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 given specific findings as to what circumstances are proved against each accused. However, it appears to us that the conviction of the accused-appellants is mainly based upon the DNA report Ex.P-143. In the course of arguments, learned Government Advocate has submitted that the prosecution has proved following circumstances against the accused- appellants:-
(i) At the time of incident both the deceased were in the company of each other.
(ii) Recovery of the deceased-prosecutrix's mobile phone with the SIM of Mobile No.95841-47788 from the possession of accused-appellant Kapil.
(iii) Accused-appellant Ashok had used mobile phone of the deceased-prosecutrix on 14.02.10 with SIM of mobile No.95755331130 and he was found in possession of the deceased-prosecutrix's a pair of silver payals.
(iv) Recovery of deceased Deepak's mobile phone and shoes from the possession of accused-appellant Ajju.
(v) The DNA report confirming that the deceased-prosecutrix was subjected to gang-rape by all the four accused-appellants.
(vi) The autopsy reports confirming that both the deceased had suffered homicidal death.
20. Before analyzing the aforestated circumstances, it would be pertinent to refer to some of the illuminating judgments in which legal principles are propounded for (35) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 convicting an accused solely on the basis of circumstantial evidence in a murder case.
21. In the case of Sharad Birdhichand Sarda V. State of Maharashtra , (1984) 4 SCC 116, the Supreme Court has set out the following five golden principles for proving a case based on circumstantial evidence:-
(i) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established;
(ii) 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;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) 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.
In this case the Supreme Court has also held that the onus is on the prosecution to prove that the chain is complete and the infirmity or lacuna in the prosecution case cannot be cured by a false defence of plea.
22. The Supreme Court had reiterated the same legal principles in the cases of Padala Veera Reddy Vs. State of A.P. , AIR 1990 SC 79, and Bodh Raj alias Bodhu and others Vs. State of Jammu and Kashmir , AIR 2002 SC 3164, though (36) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 they were restated in a different way. Almost similar view was also taken by the Supreme Court in State of Goa Vs. Sanjay , 2007 AIR SCW 2226,.
23. In the case of State of U.P. Vs. Ashok Kumar Shrivastava , 1992 Cr.L.J. 1104 SC, the Supreme Court has sounded a note of warning that great care must be taken in evaluating circumstantial evidence. Therein, it is pointed out that if the evidence relied upon is reasonably capable of two inferences, then one in favour of the accused must be accepted. It is also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the circumstances so established must be consistent only with the hypothesis of the guilt of the accused.
24. In the case of Raj Kumar Singh @ Raju @ Batiya Vs. State of Rajsthan , (2013) 5 SCC 722, the Supreme Court after reiterating the same principles as laid down in the case of Sharad Birdhichand Sarda (supra) has held that in a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof.
25. We may also make a reference to a decision of the Supreme Court rendered in the case of C. Chenga Reddy Vs. State of A.P. , (1996) 10 SCC 193, wherein it has been (37) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 observed thus:-
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
26. In the case of Manu Sharma Vs. State NCT Delhi , AIR 2010 SC 2352, the Supreme Court in para 274 of the decision has held that where an accused furnishes a false answer as to a proved circumstance in his examination under Section 313 Cr.P.C., the court ought to draw an adverse inference against the accused and such an inference shall be an additional circumstance for proving the guilt of him.
27. In the case of Munish Mubar Vs. State of Haryana , (2012) 10 SCC 464, the Supreme Court has held that it is obligatory on the part of the accused while being examined under Section 313 Cr.P.C. to furnish some explanation with regard to incriminating circumstances associated with him. The court must take note of such explanation even in a case of circumstantial evidence so as to decide whether the chain is complete? The same view was taken by the Supreme Court in the case of Pudhu Raja Vs. State , (2012) 11 SCC 196,. (38)
Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14
28. In the case of Sanatan Vs. State of West Bengal , 2010 Cr.L.J. 3871, the Supreme Court has observed as under
when a case rests upon circumstantial evidence.
"That the circumstantial evidence is more reliable than eye witness. The basic principle of circumstantial evidence is that it should be consistent with the guilt of the accused and inconsistent with innocence of the accused"
29. In the case of Musheer Khan @ Badshah Khan and Anr. Vs. State of M.P. , 2010 (2) JLJ 104, the Supreme Court has cited Lord Coleridge who has stated that circumstantial evidence is like gossamer thread, light and as unsubstantial as the air itself as may vanish of merest of touch.
30. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence (Chapter VI)" lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of (39) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
31. From a careful reading of the aforenoted decisions of the Supreme Court and the other material, it is crystal clear that the basic principle of criminal law is that an accused is presumed to be innocent until his/her guilt is proved and, therefore, in a case of circumstantial evidence it is necessary for the prosecution to prove each fact which forms a chain of evidence so complete which leads to the inevitable and only conclusion of guilt of the accused. In a case of circumstantial evidence the facts established by the prosecution should be consistent only with the hypothesis of guilt of the accused, and the facts should not indicate the possibility of any other conclusion. The court has a duty to ensure that mere suspicion or conjectures would not take the place of legal proof and the prosecution has to produce clear, cogent and unimpeachable evidence which leads to the sole conclusion of guilt of the accused.
32. Now, we will proceed to test the circumstantial evidence mentioned in para 19 on the touch stone of the propositions of law relating to the circumstantial evidence. (40)
Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14
33. Sushila Bai (PW-27), the mother of the deceased- prosecutrix, has testified in paras 5 and 8 that her deceased daughter knew deceased Deepak and he gave her a mobile phone on her birthday. She is not cross examined upon her said statement by the defence. Therefore, her statement remains uncontroverted. Upon which, it is held that both the deceased were on intimate terms.
34. Durjan Singh (PW-14) and his son Mukesh (PW-25) have stated in their evidence that the police recovered two dead bodies from their agricultural field. Laxman Singh (PW-28) has deposed that the police prepared a spot panchnama Ex.P-33 of the place where the two dead bodies were lying. There is nothing in their cross-examinations to disbelieve them. Upon the evidence of the aforesaid witnesses and Ex.P-33, it is crystal clear that the dead bodies of the two were lying adjacent to each other.
35. On the basis of aforesaid evidence, we hold that just before and at the time of the incident both the deceased were in the company of each other. Thus, the circumstance No.1 is proved by the prosecution beyond reasonable doubts.
36. Before dealing with the circumstances number (ii),
(iii) and (iv), it is relevant to consider the evidence rendered by Pradeep singh (PW-36), Sai Dutt Bohre (PW-52), Santosh (41) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 Jadav (PW-53) and Rajesh Kumar Singh (PW-55), who are the nodal officers of the mobile service provider companies, namely, the Vodafone, the Airtel, the Reliance Communication and the Idea. Pradeep Singh tendered in his evidence call details Ex.P-60 of a mobile phone bearing IMEI No.356484002849820 for the period between 14.02.2010 and 23.02.2010. Sai Dutt Bohre tendered in his evidence call details of mobile numbers 9755233915 and 9685048589 Ex.P- 77 and Ex.P-79 respectively for a period between 10.02.2010 and 28.02.2010 and call details of mobile phones bearing IMEI Nos. 358455020659230 and 35648002849820 Ex.P-80 and Ex.P-81 for a period between 14.02.10 and 20.02.10, and, 14.02.10 and 23.02.10 respectively. Santosh Jadhav provided call details of Mobile No.93030-87081 Ex.P-85 for a period between 01.02.10 and 21.02.10. Rajesh Kumar Singh has stated in his evidence that the Idea had allotted deceased Deepak Mobile No.97547-75495 upon his application vide Ex.P-86. He further stated that as per call details Ex.P-142 the SIM of aforesaid mobile number was used in the mobile phone bearing IMEI No.35845-50206-59230 for a period between 01.02.10 and 13.02.10. The aforesaid witnesses are subjected to gruelling cross-examinations by the defence on the authenticity of call details. They have (42) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 stated that the call details are system generated, therefore, there is no possibility of fabrication of call details and the same are tamper-proof. In the case of Munish Mubar (supra), the Supreme Court has relied upon the call details of the accused and the slain to prove the fact that they were in contact with each other before the incident. Hence, we place implicit reliance on the aforesaid call details.
37. Sushila Bai (PW-27), the mother of the deceased- prosecutrix, has deposed that she had given a carton of mobile phone of Motorola Company to the police, which was seized by the police vide the seizure memo Ex.P-32 in the presence of Jitendra (PW-42) and Bablu (PW-43). Both the aforesaid witnesses have corroborated the testimony of Sushila Bai. As per the seizure memo Ex.P-32, Rai Singh Soni had seized the carton. It has been already stated that he had died in a vehicular accident before recording of his statement in the trial court. Upon the perusal of their evidence, we find that they are independent witnesses and there is nothing adverse in their cross-examinations to disbelieve their testimonies. Hence, their evidence is fully reliable. Moreover, the seizure of the carton from the possession of Sushila Bai is not challenged by the defence in her cross-examination. Relying upon the evidence of Sushila Bai and the aforesaid (43) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 seizure witnesses, we hold that Rai Singh Soni had seized a carton of mobile phone of the Motorola Company from the possession of Sushila Bai vide the seizure memo Ex.P-32 on 22.02.10.
38. Rai Singh Soni has mentioned in the seizure memo Ex.P-32 as that on the seized carton IMEI No.35648-40028- 49822 is printed. However, as per the case-diary and call details Ex.P-60, Ex.P-79, Ex.P-80 and Ex.P-81, the team sought call details of mobile phone bearing IMEI No.35648- 40028-49820 from the concerned mobile service provider companies. Therefore, on the basis of the aforesaid documents, we safely hold that Rai Singh Soni had seized a carton vide seizure memo Ex.P-32 upon which IMEI No.35648-40028-49820 is printed. However, he has written last digit "two" instead of "zero" in the seizure memo Ex.P-32 by mistake. For the aforesaid reasons, the benefit of said mistake cannot be extended to accused-appellant Kapil as sought by his counsel in the course of arguments.
39. Dinesh Singh (PW-56), a member of the team, has deposed that on 02.03.10 he arrested accused-appellant Kapil before Lakhan Lal (PW-31) and Halke Bhaiya (PW-37). Thereafter, he interrogated accused-appellant Kapil before them. He disclosed him amongst other things that he had (44) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 lifted the mobile phone from the dead body of the deceased- prosecutrix. Thereafter, he removed the original SIM and installed therein the SIM of Mobile No.96850-48589 which was given to him by accused-appellant Ajju. He used the mobile phone with the aforesaid SIM for a period between 14.02.10 and 16.02.10. Later, he threw the original SIM and the aforesaid SIM in a water canal passing nearby village Chirmeta. Thereafter, he installed the SIM of Mobile No.95841-47788 in the mobile phone. The said SIM was given him by his brother Deepak. Thereupon, he drew disclosure statement Ex.P-45. On 05.03.10, he recovered the mobile phone of the Motorola Company with a SIM of Mobile No.95841-47788 and his soil-stained pants and shirt from his house in the presence of aforesaid witnesses vide the seizure memo Ex.P-47. It is pertinent to mention here that Dinesh Singh could not recover the original SIM of the deceased- prosecutrix and SIM of Mobile No.96850-48589 at the instance of accused-appellant Kapil from the water canal. In this regard, he has drawn search memo Ex.P-56.
40. Lakhan Lal and Halke Bhaiya have fully corroborated the version given by Dinesh Singh. It has been argued by the defence that Lakhan Lal is a permanent resident of village Kalmesera, the native place of deceased Deepak, and Halke (45) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 Bhaiya is the cousin-brother of deceased Deepak. Hence, they are interested witnesses. Consequently, their evidence is not reliable. We find that they are put to gruelling cross- examinations on behalf of accused-appellant Kapil, but there is nothing adverse in their cross-examinations to draw the inference that they have given evidence being prejudiced against accused-appellant Kapil. Therefore, we hold their testimonies reliable.
41. Dinesh Singh is also subjected to lengthy cross- examination on behalf of accused-appellant. However, there is nothing in his cross-examination to disbelieve his evidence. It is pertinent to mention here that in the case of Munish Mubar (supra), the Investigating Officer seized incriminating articles from the possession of accused in the absence of public witnesses, but the Supreme Court has relied upon the statement of the Investigating Officer. In view of the above ratio, we may rely on the sole evidence of Dinesh Singh assuming for the sake of arguments that Lakhan Lal and Halke Bhaiya are interested witnesses.
42. On the basis of the aforesaid evidence, we hold that Dinesh Singh seized a mobile phone of Motorola Company with SIM of Mobile No.95841-47788 from the possession of accused-appellant Kapil.
(46)
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43. As per call details Ex.P-79 and Ex.P-81 for a period between 14.02.10 and 16.02.10 SIM of Mobile No.96850- 48589 was installed in a mobile phone of IMEI No.35648- 40028-49820. As per call details Ex.P-60 for a period between 21.02.10 and 23.02.10 the SIM of Mobile No.95841-47788 was installed in the mobile phone of aforesaid IMEI number. It has already been held that the mobile phone of aforesaid IMEI number belongs to the deceased-prosecutrix. As per the Marg intimation report Ex.P-19, inquest report of the deceased-prosecutrix Ex.P-34 and the statement of Dr.A.K. Agrawal (PW-16) on the timing of death of the deceased- prosecutrix, it can be held that she was murdered between 13.02.10 and 15.02.10, but her mobile phone was in use till 23.02.10. Accused-appellant Kapil has not given any cogent explanation in his examination under Section 313 Cr.P.C. or otherwise as to how he has acquired the mobile phone of the aforesaid IMEI number and the company.
44. In view of the aforesaid analysis of the evidence, we hold that the prosecution has proved circumstance No.2 beyond reasonable doubts that the deceased-prosecutrix's mobile phone was recovered from the possession of accused- appellant Kapil and he had used the mobile phone till 23.02.10.
(47)
Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14
45. Dinesh Singh (PW-56) has deposed that on 02.03.10 he arrested accused-appellant Ashok in the presence of Lakhan Lal (PW-31) and Halke Bhaiya (PW-37) vide the arrest memo Ex.P-51. On the same day, he quizzed him in the presence of the aforesaid witnesses. He revealed amongst other things that he had lifted a pair of silver payals from the dead body of the deceased-prosecutrix. He also disclosed that he had used the mobile phone with a SIM and he had kept the aforesaid articles in an iron-box kept in one of the bedrooms of his house. On the basis of this information, he drew the disclosure statement Ex.P-41. On 05.03.10, he recovered a mobile phone of the Nokia Company Model No.1028 with SIM No.9575531130, one pair of silver payals and soil smudged clothes from his house in the presence of the aforesaid witnesses vide the seizure memo Ex.P-42. Both the said witnesses have fully corroborated the statement given by Dinesh Singh. All the three are put to lengthy cross- examinations by learned counsel of accused-appellant Ashok. However, learned counsel has failed to elicit any evidence in favour of him. Thus, we hold their testimonies are reliable.
46. While considering circumstance No.2, we have already held that Dinesh Singh had seized the deceased- prosecutrix's mobile phone from the possession of accused- (48)
Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 appellant Kapil. As per call details Ex.P-81, on 14.02.10 SIM of Mobile No.95755-31130, which is seized by Dinesh Singh from the possession of accused-appellant Ashok, was used in the mobile phone of IMEI No.35648-40028-49820, which belonged to the deceased-prosecutrix. Thus, the call details prove that accused-appellant Ashok had used the mobile phone of the deceased-prosecutrix on 14.02.10, which connects him to the crime.
47. As per the identification memo Ex.P-15, on 05.05.10 Kishore Shah (PW-33) had got one mobile phone and one pair of silver payals identified by Sushila Bai (PW-27), the mother of the deceased-prosecutrix, in the presence of Har Kishan (PW-18) and Preetam Singh (PW-44). However, Kishore Shah has denied in his evidence having held the identification parade. Thereupon, the prosecution has declared him hostile. However, Sushila Bai has deposed that in the identification proceedings she identified a mobile phone and one pair of silver payals amongst other things as those of her daughter/the deceased-prosecutrix. Harkishan and Preetam Singh have deposed that Sushila Bai had correctly identified the aforesaid articles in their presence. There is nothing adverse in the cross-examinations of Sushila Bai, Harkishan and Preetam Singh to disbelieve their testimonies on the (49) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 point. Hence, there is no adverse impact upon the prosecution case because of Kishore Shah has been declared hostile by the prosecution. Thus, we hold that Dinesh Singh recovered the deceased-prosecutrix's silver payals from the possession of accused-appellant Ashok. We find that he has not offered any explanation in his examination under Section 313 Cr.P.C. or otherwise as to how he got possession over the deceased-prosecutrix's payals. Consequently, it is proved that he had removed the seized payals from the dead body of the deceased-prosecutrix.
48. In conclusion, we hold that the prosecution has proved circumstance No.3 beyond reasonable doubts that on 14.02.10 accused-appellant Ashok had the mobile phone of the deceased-prosecutrix and her payals which were recovered from his possession after her murder.
49. As per the seizure memo Ex.P-6, on 24.02.10, Rai Singh Soni seized a mobile phone of the Sigmatel Company with two SIMs of Mobile Nos. 96308-46291 and 97552-33915 of the Airtel on being produced by Ashok Raghuwanshi (PW-39) in the presence of Ajab Singh (PW-10) and Santosh (PW-15). However, they have denied the aforesaid seizure in their examination-in-chief. Thereupon, they have been declared hostile by the prosecution. On being cross-examined (50) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 by the prosecution, Ashok Raghuwanshi in para 6 of his evidence has admitted that SIM of Mobile No.96308-46291 has been issued in the name of his aunt Shanta Bai and he found SIM of Mobile No.97552-33915 on a public way. It has already been held that IMEI number of deceased Deepak's mobile phone is 35845-50206-59230. As per the call details Ex.P-77 and Ex.P-80, the SIMs of aforesaid mobile numbers were used in the mobile phone of aforesaid IMEI number between 14.02.10 and 22.02.10, whereas deceased Deepak had been murdered between 13.02.10 and 15.02.10. Thus, on the basis of the aforesaid call details, it is held that aforesaid witnesses namely Ashok Raghuwanshi, Ajab Singh and Santosh have given false evidence as to seizure of the mobile phone and the SIMs.
50. Dinesh Singh (PW-56) has testified that on 13.03.10 he arrested accused-appellant Ajju vide the arrest memo Ex.P-12 in the presence of Sheikh Yakub (PW-16) and Narsinghdas (not-examined). On the same day, he interrogated him in the presence of Laxman Singh (PW-28) and Halke Bhaiya (PW-37). He disclosed him that he had removed from the dead body of deceased Deepak his mobile phone, shoes and pocket diary. Thereafter, he pulled out the installed SIM out of the mobile phone and later sold the (51) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 mobile phone to Ashok Raghuwanshi (PW-39) at Rs.450/-, his chappals got stuck in mud which he left near the scene of crime and put on deceased Deepak's shoes, which he, later, threw in a field having standing wheat-crop. The filed is nearby village Kheriya. Thereupon, he recorded his disclosure statement Ex.P-35. On the same day, he recovered deceased Deepak's shoes at his instance in the presence of the aforesaid witnesses from the said field owned by Pohap Singh Raghuwanshi vide the seizure memo Ex.P-36.
51. We have already held that deceased Deepak's mobile phone was recovered from the possession of Ashok Raghuwanshi (PW-39). Thus, we place reliance on that part of accused-appellant Ajju's disclosure statement wherein he has stated to have sold deceased Deepak's mobile phone to Ashok Raghuwanshi (PW-39), which, in turn, proves that accused-appellant Ajju had removed deceased Deepak's mobile phone from his dead body.
52. Laxman Singh and Halke Bhaiya have corroborated in their evidence the aforesaid statement made by Dinesh Singh. Learned counsel for accused-appellant Ajju has crossed them at length. But, he has failed to discredit their evidence. Thus, we hold that Dinesh Singh has seized deceased Deepak's shoes at the instance of accused-appellant Ajju. (52)
Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14
53. Basant (PW-32) has stated that on 21.03.10 he got one pair of shoes, one belt, one purse and one mobile phone identified by Meena Bai (PW-9), the wife of deceased Deepak, by mixing up other similar articles in size and shape in the presence of Laxman Singh (PW-28) and Dinesh Singh s/o Chhotelal (PW-23). He further stated that Meena Bai had identified the aforesaid articles amongst other articles as those of her husband/deceased Deepak. He has proved the identification memo Ex.P-5. His evidence is fully corroborated by the testimonies of Meena Bai, Laxman Singh and Dinesh. They are subjected to tedious cross-examinations on behalf of accused-appellant Ajju. However, there is nothing in their cross-examinations to disbelieve them. It is pertinent to mention here that as per the seizure memos Ex.P-27 and Ex.P-28 Rai Singh Soni seized a belt and a purse close to the dead body of deceased Deepak, therefore, only the identification of deceased Deepak's shoes by his wife is material. Thus, we hold that deceased Deepak's shoes are recovered at the instance of accused-appellant Ajju.
54. It may be mentioned here that Dinesh Singh could not recover deceased Deepak's pocket diary and accused- appellant Ajju's chappals which he has stated to have left at the place of occurrence. In this regard, he has prepared (53) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 search memos Ex.P-38 and Ex.P-39.
55. On the basis of aforesaid evidence, we hold that prosecution has proved circumstance No.4 beyond reasonable doubts that deceased Deepak's mobile phone and his shoes are recovered at the instance of accused-appellant Ajju.
56. Dr. A.K. Agrawal (PW-46) has testified that on 16.02.10 he and Dr. Anita Sahu (not-examined) had jointly performed the autopsy on the dead body of the deceased- prosecutrix. At that time, they had prepared slides of her vaginal swab/smear, cut off a few strains of her pubic hairs, finger-nails of her both hands and removed her underwear from her person and thereafter they sealed them in separate packets and handed them over to Constable Kailash Chandra (PW-38) for forensic tests. He further testified to have done medico-legal examinations of accused-appellants namely Kapil, Ashok and Ramjivan on 02.05.10 and accused-appellant Ajju on 14.03.10. He found them capable of performing sexual intercourse and gave reports Ex.P-69, Ex.P-72, Ex.P-73 and Ex.P-74 respectively. He further testified that he prepared slides of their semen and cut off their some of pubic hairs and sealed them in different packets and handed them over to Head Constable Yashwant (PW-19). Both the (54) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 aforesaid police constables have stated in their evidence to have received sealed packets from Dr. A.K. Agrawal. Upon the perusal of evidence appearing in the cross-examination of Dr. A.K. Agrawal, we find that his aforesaid evidence remains uncontroverted and unchallenged as he is not substantially cross-examined on behalf of all the accused-appellants. Thus, we hold that his evidence is reliable on the aforesaid points.
57. Head Constable Gopal Singh (PW-61) has stated in his evidence that the seized articles had been sent to the FSL Sagar for forensic tests vide the letter Ex.P-144. The letter bears signature of Rajesh Raghuwanshi (PW-57). There is nothing in his cross-examination to disbelieve his evidence. Thus, we place reliance upon his evidence.
58. Dr. Pankaj Shrivsatava (PW-60) has deposed that he has been posted as Scientific Officer in the FSL Sagar since 09.09.08. He further stated that he has been carrying out DNA tests since March, 2007. Before carrying out the DNA tests in the present case, he had tallied the impression of sample-seal with those on sealed packets numbering 48 and found the same. He also found the sealed packets were intact. Thus, he had not found any evidence of tampering or interpolation. He further deposed that in the course of DNA tests, he extracted DNAs from the source materials namely (55) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 deceased-prosecutrix's underwear and slides of her vaginal swab by using organic extraction and deferential organic technique. He found that the source materials contain DNAs of more than one person. Thereafter, with the same technique he extracted DNAs of all accused-appellants namely Ashok, Ramjivan, Kapil and Ajju from their semen-slides. Upon comparison and matching, he found their DNAs on the underwear and the vaginal swab of the deceased-prosecutrix. After the completion of DNA tests, he prepared his report Ex.P-143 on 16.12.10, which runs into 8 pages and each page bears his signature.
59. On the perusal of cross-examination of Dr. Pankaj Shrivastava, we find that general suggestions are given in his cross-examination on behalf of the accused-appellants, which he has denied. Not only that one of the advocate of the accused-appellants has misconception to the extent that the finger print expert and the DNA finger-printing expert are the one and the same person and he has crossed Dr. Pankaj Shrivastava as if he were a finger print expert. Not a single question is put in his cross-examination as to his competency in conducting DNA tests, his own credibility, accuracy of the methodology or the procedure followed by him for DNA profiling or possibility of the samples having been (56) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 contaminated or tampered with. In the case of Sandeep Vs. State of U.P. , (2012) 6 SCC 107, the apex court has held that the burden of proving that the DNA report was vitiated for any reason was on the accused. From a perusal of cross- examination of this witness, we find that nothing is elicited on behalf of the accused-appellants to cast a doubt either on the reliability of the testimony of the witness or the authenticity of the DNA report.
60. In the cases of Kamti Devi (supra), Santosh Kumar Singh's (supra) and Nandlal Wasudeo Badwaik (supra), the Supreme Court has held that the DNA report is scientifically accurate and exact science. In the cases of Santosh Kumar Singh (supra) and Anil (supra), the Supreme Court has held on the basis of the DNA reports that deceased victims were subjected to rape and sodomy before being murdered.
61. In view of the aforesaid authorities, we place absolute reliance upon the evidence of Dr. Pankaj Shrivastava and his DNA report Ex.P-143. On the basis of the aforesaid discussion, we hold that the prosecution has established circumstance No.5 beyond reasonable doubts that the deceased-prosecutrix was subjected to gang-rape by the accused-appellants.
62. Dr. A.K. Agrawal (PW-46), in his evidence has stated (57) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 that on 16.02.2010 he and Dr. Anita Sahu were posted as Medical Officers at the Community Health Center, Pipariya. Upon the requisitions of the Police Station Pipariya, on that day he alone performed the autopsy on the dead body of deceased Deepak and he and Dr. Anita Sahu jointly conducted the post-mortem on the dead body of an unknown woman. He has further stated that he has assessed the age of deceased Deepak near-about 24 years and found following injuries on his person.
External Injuries
(i) One contusion on the right parietal temporal region of head, size 8x4 c.m.
(ii) One contusion on the left parietal region of head, size 10x3 c.m.
(iii) One contusion on the posterior side of head, size 8x3 c.m.
(iv) One contusion on the forehead, size 7x2 c.m.
(v) One contusion on the back side of scapular region of right shoulder, size 12x5 c.m.
(vi) One contusion over the scapula of left shoulder, size 5x2 c.m.
(vii) One contusion over the frontal side of right hand arm, size 10x4 c.m.
(58)
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(viii) One contusion (size is not mentioned in the post-mortem report) over the outer side of right forearm.
(ix) One contusion over the outer side of left arm, size 5x4 c.m.
(x) One contusion over the outer side of left forearm, size 5x2 c.m.
Internal Injuries Right temporal bone of the head was broken, blood clotted over the brain and its tissues were torn.
Opinion - All the injuries were ante-mortem in nature and caused by a hard and blunt object. Breakage of the temporal bone of the head was sufficient to cause death in ordinary course of nature. The remaining injuries were simple in nature. All the injuries were inflicted within six hours before the death. Deceased Deepak died of shock and hemorrhage. He died 48 to 72 hours before the post-mortem examination. The nature of his death was homicidal. His post- mortem report is Ex.P-66.
63. Dr. A.K. Agrawal has also stated that he and Dr. (59) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 Anita Sahu had assessed the age of the deceased woman near-about 24 years and found following injuries on her person.
External Injuries
(i) Five abrasions caused by finger-nails over upper region of the right breast, each of the abrasions had the width about 1 c.m.
(ii) Five marks of finger-nails over lower region of the right breast, the width of each of the marks was 1 c.m.
(iii) Five brown marks of finger-nails over the right side of the neck.
(iv) One ligature mark around the neck which was below the thyroid cartilage, the width of ligature mark was 1/2 c.m. and the margins of mark were brown.
(v) One ears of wheat with stalk was partly found into the vagina.
Injuries No. (i) to (iii) were ante-mortem in nature caused by finger-nails. Injury No.(iv) was caused by means of a piece of rope or wire. All the injuries were caused within two hours before the death.
(60)
Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 Internal Injuries Both the lungs were swollen and red.
Blood was present in the left and the right chambers of heart. The remaining internal organs were red.
Opinion - The cause of death of deceased woman was asphyxia due to strangulation. Signs of sexual assaults were present indicating that the deceased-woman was subjected to rape before her death. The mode of her death was homicidal. The deceased-woman died 48 to 72 hours prior to the post-mortem examination. Her post-mortem report is Ex.P-67.
64. Upon the perusal of cross-examination of Dr. A.K. Agrawal, we find that the defence has not challenged seriously the mode of death of both the deceased. Hence, we hold that the prosecution has proved circumstance No.6 beyond reasonable doubts that both the deceased have suffered homicidal deaths.
65. It is a settled law in a case of murder based upon the circumstantial evidence, the motive gains significance. We have already held that the deceased-prosecutrix was gang- raped and immediately thereafter she and deceased Deepak (61) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 were murdered. Upon combining both the events, we also hold that the motive behind the murders of both the deceased by the accused-appellants was that they would not lodge the police report of gang-rape and come forward to give evidence against them in respect of the gang-rape in the court of law.
66. It is pertinent to mention at this stage that we have carefully considered the depositions of all the 61 prosecution witnesses but discussed the statements of those prosecution witnesses in the judgment whose evidence have relevancy even remotely from the point of views of the prosecution or the defence.
67. We have seriously considered the value of unexhibited FSL report as argued thereon by the defence. As per the report, the samples of soil collected from the scene of crime and the stains of soil found on the clothes seized from the possessions of the accused-appellants are different in the composition and the texture. We do not attach any importance to the report in view of the overwhelming evidence against the accused-appellants being found reliable by us after due discussion.
68. Before proceeding to examine the evidence of lone defence witness Dr. Sudhir Jaswani (DW-1), we mention (62) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 herein that Dr. G.P. Khare (PW-45) took the blood samples of all the accused-appellants for DNA tests. Dr. Sudhir Jaswani in his evidence has stated that the Government of Madhya Pradesh had terminated the services of Dr. G.P. Khare on the ground that his MBBS Degree was found forged in the inquiry. Upon the said statement, it was argued by the defence that Dr. G.P. Khare was not qualified for taking blood samples of the accused-appellants for the DNA tests. DNA analyst Dr. Pankaj Shrivastava (PW-60) has stated in para 10 of his evidence that he had not obtained DNA profiling of the accused-appellants from their blood samples. Hence, we hold that the evidence of this witness has no evidentiary value at all.
69. Considering the cumulative effect of all the proved circumstances, we hold the chain of circumstantial evidence is complete that unerringly points that none other than the accused-appellants had committed the crime. Therefore, the trial court has not committed any error of law or facts in convicting the accused appellants for the offences punishable under Sections 376(2)(g), 302 r.w. 34 (two counts) and 201 IPC.
70. Now, we shall proceed to deal with whether the imposition of death sentence upon the accused-appellants by (63) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 the trial court under Section 302 IPC holds any justification?
71. The Supreme Court has evolved the doctrine of "the rarest of the rare" case in awarding the death sentence through its scores pronouncements. Hence, the first point before us is whether the present case falls under the category of the rarest of the rare case?
72. In the case of Machhi Singh (supra), the Supreme Court has observed in para 39 of the decision that the following questions may be asked and answered as a test to determine the rarest of the rare case in which death sentence can be inflicted.
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
73. In the case of Lehna Vs. State of Haryana , (2002) 3 SCC 76, the Supreme Court has defined in para 23 of the decision that "the rarest of rare" case when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death (64) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:-
"(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion.
For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."
74. The Supreme Court in the case of Mofil Khan Vs. State of Jharkhand , (2015) 1 SCC 67, in para 64 of its (65) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 decision has expressed its view upon the rarest of the rare case as under:-
"The rarest of the rare case" exists when an accused would be a menace, threat and antithetical to harmony in the society. Especially in cases where an accused does not act on provocation, acting on the spur of the moment but meticulously executes a deliberately planned crime in spite of understanding the probable consequence of his act, the death sentence may be the most appropriate punishment."
75. The Supreme Court has ruled in para 20 of its judgment rendered in the case of Haresh Mohandas Rajput Vs. State of Maharashtra , (2011) 12 SCC 56, thus:-
"The rarest of the rare case comes when a convict would be menace and threat to the harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in the category of "the rarest of the rare case".
76. The Supreme Court has laid down the test of the rarest of the rare case in para 27 of its decision in the case of Anil @ Anthony Arikswamy Joseph (supra) thus:-
"The rarest of the rare test depends upon the perception of the society that is "society-centric"
and not "Judge-centric", that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into the variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls, intellectually challenged minor girls, minors suffering from physical disability, old and infirm women, etc."
77. In the case of Santosh Kumar Vs. State through (66) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 C.B.I. , (2010) 9 SCC 747, the Supreme Court in para 98 has explained the philosophy behind the rarest of the rare principle thus:-
"Undoubtedly, the sentencing part is a difficult one and often exercises the mind of the court but where the option is between a life sentence and a death sentence, the options are indeed extremely limited and if the court itself feels some difficulty in awarding one or the other, it is only appropriate that the lesser sentence should be awarded. This is the underlying philosophy behind "the rarest of the rare" principle."
78. In the case of Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra , (2009) 6 SCC 498, the apex Court held that the nature, motive, and impact of crime, culpability, quality of evidence, socio economic circumstances, impossibility of rehabilitation are some of the factors, the Court may take into consideration while dealing with such cases.
79. In the case of Bachan Singh (supra), the Supreme Court has laid down the following guidelines to be applied to the facts to each individual case where the question of imposition of death sentence arises:-
(i) The extreme penalty of death need not be inflicted except in the gravest cases of extreme culpability.
(ii) Before opting for the death penalty, the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and the death (67) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
80. In the cases of Bachan Singh and Machhi Singh (supra), the Supreme Court has enumerated following aggravating and mitigating circumstances for consideration of awarding the capital punishment:-
Aggravating circumstances (crime test) (1) 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.
(2) The offence was committed while the offender was engaged in the commission of another serious offence.
(3) 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 devise which clearly could be hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously (68) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 for want only while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) 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 Cr.P.C.
(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.
(10) 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 staying with a father/uncle and is inflicted with the crime by such a trusted person.
(11) When murder is committed for a motive which evidences total depravity and meanness.
(12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating circumstances (criminal test) (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.
(4) 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.
(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental (69) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the crime was not 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.
(7) 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.
However, we are aware that the Supreme Court in the case of Shankar Kisanrao Khade vs. State of Maharashtra , (2013) 5 SCC 546, has stated that the application of aggravating and mitigating circumstances needs a fresh look in sentencing process. Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance-sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. In the sentencing process both the crime and criminal are equally important.
81. In the light of aforesaid legal position, we shall consider whether the instant case falls within the category of rarest of the rare case? We visualise that following are the aggravating and the mitigating circumstances. (70)
Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 Aggravating circumstances (1) The accused-appellants first committed gang-rape and thereafter they murdered the deceased-prosecutrix and her companion deceased Deepak. They were quite young and were murdered in a cruel and barbaric manner. (2) In recent past many cases are reported in the newspapers that rapist/rapists first commits/commit rape/gang-rape and thereafter murder the victim-girl/woman so that she would not depose against him/them in the courts. Hence, there is an urgent need on the part of the courts to send strong messages to such criminal(s) that the court would deal with him/them with the severest punishment i.e. capital punishment.
(3) The accused-appellants had not committed the offence under the influence of alcohol or any other intoxicating substance.
(4) The accused-appellants have absolutely no regard for the chastity of a woman and the life and limb of a person.
Mitigating circumstances (1) The prosecution has not produced any evidence against any of the accused-appellants with regard to his criminal antecedents. Hence, we may deduce that the accused-appellants being the first offenders are not menace (71) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 or threat to the society.
(2) All the accused-appellants are in the age group of 25 to 30 years and some of them are married.
(3) There is no evidence on record as to which accused- appellant took a lead to instigate other accused-appellants to commit the crime. Hence, it is not possible for us to identify whose case among the accused-appellants falls in the category of the rarest of the rare case.
(4) Evidence on record reveals that the deceased- prosecutrix was unmarried girl, whereas deceased Deepak was married man. The deceased-prosecutrix belonged to Kahar caste, while deceased Deepak was of Kushwaha caste. Moreover, they were permanent residents of different places. The deceased-prosecutrix was a resident of Sohagpur, whereas deceased Deepak was a resident of village Kalmesera. Sushila Bai (PW-27), the mother of the deceased- prosecutrix, has stated in her evidence that the deceased- prosecutrix had left the house, saying that she was going to Itarsi to meet her elder sister Pooja. Meena Bai (PW-9), the wife of deceased Deepak, has stated in her evidence that her husband left the house, saying that he was going to village Bankhedi. Sushila Bai has also stated that deceased Deepak gave a mobile phone to her deceased daughter on her (72) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 birthday. The dead bodies of both the deceased were found in the agricultural field close to each other. If these facts are put together, it appears to us that both the deceased had close physical intimacy. Hence, it may be that the accused- appellants saw them in a compromising position which aroused them and they committed the crime. Thus, it can be said safely that the accused-appellants committed the offence at the spur of moment.
Upon the comparison of the aggravating and the mitigating circumstances, we find that the mitigating circumstances have far outweighed the aggravating circumstances.
82. The Supreme Court in the case of Shankar Kisanrao Khede (supra) has considered a slew of cases, where the victims were first subjected to rape/gang-rape/sodomy and thereafter they were murdered by the accused/accused persons, in which the Supreme Court has affirmed the death sentences or converted the same into the life imprisonments.
83. The facts of the present case are similar to those of the case of Ronny Vs. State of Maharashtra , (1998) 3 SCC 625,. In that case, three accused persons in the age group of 23 to 25 years had committed three murders and a gang- rape. The Supreme Court commuted their death sentences to (73) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 imprisonments for life on the ground that it was not possible to identify whose case would fall in the category of "the rarest of the rare" case. We have already stated under the head of mitigating circumstance that it is not possible to identify whose accused-appellant case falls in the category of rarest of the rare case. Keeping in view the facts of case-law, we are not inclined to affirm the capital punishment as imposed by the learned Trial Judge upon the accused- appellants.
84. Now, the point remains to be decided by us is what will be appropriate sentence to be given to the accused- appellants.
85. Taking the global view of the present case and keeping in mind the law laid down in the aforenoted rulings, we alter the capital punishment awarded to each of the accused-appellants into the imprisonment for life for each of the two counts under Section 302 r.w. 34 IPC.
86. In the result, (1) The criminal reference of 1 of the year 2014 made by the learned Trial Judge for confirmation of death sentences awarded to the accused-appellants under Section 302 r.w. 34 IPC (two counts) is rejected. However, the order of convictions under Sections 201, 376(2)(g) and 302 r.w. 34 (74) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 (two counts) IPC is upheld.
(2) All the appeals filed by the accused-appellants are allowed to the extent that they would suffer life- imprisonment for each count under Section 302 r.w. 34 IPC instead of capital punishment.
(3) Each of the accused-appellants would suffer RI for 7 (seven) years under Section 201 IPC, RI for life under Section 376(2)(g) IPC and RI for life for each of the two counts under Section 302 r.w. 34 IPC. Keeping in view the law laid down by the supreme court in the case of Muthuramalingam and others Vs. State , represented by Inspector of Police, (2016) 8 SCC 313, each of the accused- appellants shall suffer first jail sentence under section 201 IPC and thereafter life imprisonments awarded to him under sections 376(2)(g) and 302 r.w. 34 (two counts) IPC "concurrently ".
(4) The fine sentences with default jail sentences as imposed by the trial court upon each of the accused- appellants shall remain as they are.
87. Before parting with this case, we would say a few words upon the DNA test/profiling/finger-printing. It is a recently developed impeccable scientific technique in determining the identity of a person alleged to be involved in (75) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 crime provided the crime-related DNA samples are properly collected, not tampered with or not contaminated and the DNA analyst correctly matches them with duly obtained DNA sample from the person concerned. Now-a-days, the DNA profiling is being increasingly used by the investigating agencies to nab culprits especially in those cases where the ocular evidence is not forthcoming. To safeguard the interests of culprits, the persons who have collected crime- related DNA samples and the DNA analysts are required to be cross-examined effectively by their advocates. It is only possible when they know the areas where the DNA samples collectors may make irregularities in collecting them or the DNA analysts may make mistakes at the time of matching the DNA profilings. Keeping in view the aforesaid, we request the State Bar Council of Madhya Pradesh to make efforts to enlighten lawyers as to how the aforesaid persons can be effectively crossed by arranging lectures of experts of the DNA field and by making lawyers available exhaustive reading-materials in this regard. We have come across that in the United State of America if the prosecution case is entirely based upon the DNA evidence, then it is mandatory for the prosecuting concerned agency to get the DNA samples analyzed by the two recognized laboratories without (76) Criminal Reference No.1/2014 and Cr.A. Nos. 3538/14, 1075/15, 3512/14 & 3598/14 disclosing each other the fact that the DNA samples are also sent for analysis to another laboratory as well. If the reports of both the laboratories are same, then the prosecution is launched. Hence, we also request to the investigating agencies to follow the suit in this regard.
88. Copies of this judgment be sent to the Bar Council of Madhya Pradesh and the Principal Home Secretary to the State Government of M.P. Bhopal for information and taking steps in respect of recommendations made by us in para 87 of this judgment.
(J.K. Maheshwari) (Rajendra Mahajan)
Judge Judge
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