Karandeep Sharma @ Razia @ Raju vs. The State Of Uttarakhand

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 630-631 OF 2018

KARANDEEP SHARMA
@ RAZIA @ RAJU ….APPELLANT(S)

VERSUS

STATE OF UTTARAKHAND ….RESPONDENT(S)

J U D G M E N T
Mehta, J.
1. Heard.
1
2. The accused-appellant was tried by the Fast
Track Court/Additional Sessions Judge/Special
2
POCSO Judge, Rudrapur, Udham Singh Nagar in
Special Sessions Trial No. 159 of 2016 for the offences
Signature Not Verified

1
Hereinafter. Referred to as the ‘appellant’.
2
Hereinafter, referred to as the ‘trial Court’.
Digitally signed by
NEETU KHAJURIA
Date: 2025.04.05
11:06:01 IST
Reason:
1


punishable under Sections 376A, 302, 366, 363 and
3
201 of the Indian Penal Code, 1860 and Sections 5/6
of the Protection of Children from Sexual Offences Act,
4 th th
2012 . Vide judgment dated 5 April, 2017 and 6
April, 2017, he was convicted and sentenced in the
terms below:

3
Hereinafter, referred to as the ‘IPC’.
4
Hereinafter, referred to as the ‘POCSO Act’.
2
Criminal Appeal No. 630-631 of 2018


5
3. The trial Court forwarded a reference under
6
Section 366 of the Code of Criminal Procedure, 1973 to
7
the High Court of Uttarakhand at Nainital , for
confirmation of the death sentence. The appellant also
8
preferred an appeal assailing his conviction. The High
th
Court vide judgment dated 5 January, 2018 dismissed
the appeal preferred by the appellant and answered the
reference in the affirmative thereby confirming the
penalty of death sentence awarded to the appellant by
the trial Court. The said judgment of the High Court is
the subject matter of challenge in these appeals by
special leave at the instance of the accused-appellant.

5
Criminal Reference No. 1 of 2017.
6
Hereinafter, referred to as the ‘CrPC’.
7
Hereinafter, referred to as the ‘High Court’.
8
Criminal Appeal No. 156 of 2017.
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Criminal Appeal No. 630-631 of 2018


4. The case of the prosecution as unfurling from the
9
record is that the child-victim, i.e., Ms. A went missing
from a Jagran function which was organized in the
th th
village Fasiyapura on the intervening night of 25 /26
10
June, 2016. The father of the victim(PW-1) lodged an
11
FIR to the effect that his daughter had gone missing
from the Jagran function and all their efforts to trace
out the girl proved futile. While he was continuing the
search operations, someone told him that the body of a
girl child was lying in a nearby field. On this, the
complainant(PW-1) along with his family members
rushed to the location and identified the dead body to
be that of his daughter (child-victim). The
complainant(PW-1) suspected that the child-victim had

9
Hereinafter, referred to as the ‘child-victim’.
10
Hereinafter, referred to as the ‘complainant(PW-1)’.
11
FIR No. 236 of 2016 (Exhibit Ka-1).
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been subjected to forcible sexual assault before being
killed. On receiving the FIR, Om Prakash Sharma,
Investigating Officer(PW-14) commenced investigation.
Spot documents were prepared, and an inquest was
carried out on the child-victim’s dead body. Statements
of witnesses were recorded. The body of the child-victim
was sent for post-mortem examination. Dr. Madan
Mohan, medical officer(PW-7) conducted autopsy upon
12
the dead body and issued the post-mortem report ,
taking note of multiple injuries on the private parts and
the head of the child-victim. He opined that the cause
of death of the child-victim was asphyxia. Statements of
the material witnesses were recorded. The appellant
th
was apprehended on 28 June, 2016. It is alleged that
13
the Investigating Officer(PW-14) got the confession of

12
Exhibit Ka-2.
13
Exhibit Ka-11.
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Criminal Appeal No. 630-631 of 2018


the appellant recorded through the Magistrate
concerned. After concluding the investigation, a charge-
14
sheet came to be filed against the appellant and he
was subjected to trial. Upon completion of trial, the
appellant was convicted and sentenced as mentioned
above.
5. The appeal filed by the appellant against his
conviction also stands rejected and the death sentence
awarded to the appellant by the trial Court has been
th
confirmed by the High Court vide judgment dated 5
January, 2018. Hence, the present appeals by special
leave.
6. Learned counsel representing the appellant urged
that the entire prosecution case is based on

14
Exhibit Ka-17.
6
Criminal Appeal No. 630-631 of 2018


circumstantial evidence which is purely conjectural and
untrustworthy. There is no tangible evidence on record
to connect the appellant with the crime. The evidence of
the witnesses of last seen circumstance, i.e., PW-2, PW-
3, PW-5, PW-6, PW-8 and PW-11 is totally unreliable.
Further, the DNA report cannot be read in evidence
because the expert who conducted the DNA
examination was not examined by the prosecution at
the trial.
7. Learned counsel further submitted that the
confession of the appellant was extracted under threat,
duress and coercion and that is why neither the trial
Court nor the High Court relied upon the same.
8. On these grounds, learned counsel for the
appellant implored the Court to accept the appeals, set
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aside the conviction of the appellant, and acquit him of
the charges levelled against him.
9. Per contra , learned standing counsel appearing for
the respondent-State vehemently and fervently opposed
the submissions advanced by the learned counsel for
the appellant. He urged that the material prosecution
witnesses, i.e., PW-2, PW-3, PW-5, PW-6, PW-8 and PW-
11, have given unimpeachable testimony alleging that
the child-victim was last seen in the company of the
appellant on the night of the incident whereafter she
was not seen alive.
10. Learned counsel further urged that the DNA
expert’s report (Exhibit Ka-8) conclusively established
that the DNA obtained from the t-Shirt of the appellant
matched with the DNA obtained from the blood sample
of the child-victim. Likewise, the DNA obtained from the
8
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hair of the suspect, vaginal smear of the child-victim
and her clothes were found to be matching with the
DNA obtained from the blood sample of the child-victim
and the blood sample of the appellant. Learned counsel
thus, submitted that the evidence of the witnesses of
the last seen circumstance coupled with the DNA/FSL
report is sufficient to bring home the guilt of the
appellant. On these grounds, learned counsel for the
respondent-State sought dismissal of the appeals.
11. We have given our thoughtful consideration to the
submissions advanced at the Bar and have gone
through the impugned judgments and minutely
reappraised the evidence available on record.
12. There is no dispute that the case of the
prosecution rests totally on circumstantial evidence in
the form of ‘last seen’, ‘recoveries’, ‘confession of the
9
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appellant’ and the ‘DNA/FSL report’. We may note that
the confession of the appellant was exhibited in
prosecution evidence but the same was not relied upon
by the trial Court or the High Court and thus, the same
need to be taken into consideration while appreciating
the evidence available on record. Otherwise also, we
find that the confession seems to have been extracted
under duress and cannot be termed voluntary. The
prosecution is, thus, left with the testimony of the
witnesses of the last seen theory and the DNA/FSL
report in its endeavour to bring home the guilt of the
appellant.
13. Before we proceed to discuss the evidence of the
prosecution witnesses, we may note that the present
case is yet another classic example of undue haste
10
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resulting in denial of proper opportunity to the accused
to be tried in a just and fair manner.
14. The sequence of events narrated below is sufficient
to draw this inference.
15. The incident took place on the intervening night of
th th
25 /26 June, 2016. The charge-sheet came to be filed
th
on 24 September, 2016 and the trial Court took
cognizance of the same on the very same day. The
th
matter was deferred to 26 September, 2016 for
providing copies of the documents submitted under
Section 173(2) CrPC to the appellant, as per the
mandate of Section 207 CrPC. The matter was then
th
deferred to 5 October, 2016 for the very same purpose.
th th
The order sheets of 5 October, 2016, 13 October,
th th st
2016, 17 October, 2016, 19 October, 2016 and 1
November, 2016, all indicate that the matter was
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deferred for providing the copies of the relied upon
documents to the accused (appellant herein). It was
th
only on 5 November, 2016 that the trial Court noted
that the appellant had been presented from custody and
the documents included in the chargesheet as relied
upon by the prosecution were being provided to him. It
must be emphasized that till this date the appellant was
neither represented by a privately engaged defence
counsel nor did the trial Court offer him the services of
th
a legal aid counsel. On 5 November, 2016 itself, the
trial Court proceeded to frame charges against the
appellant even though he had been provided with the
copies of the relied upon documents on that very day.
Apparently thus, proper opportunity was not given to
the appellant before framing charges against him and
sending him for trial. Not only this, the trial Court
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extensively referred to the confession of the appellant
recorded under Section 164 CrPC while framing charges
against him. It is a different matter that the said
confession was not relied upon either by the trial Court
or the High Court, as a reliable piece of evidence against
the appellant. On none of the dates fixed by the trial
Court right up to the framing of charges and
summoning of the witnesses did the Court make any
endeavour to provide legal aid counsel to the appellant
despite noting the fact that he remained unrepresented
throughout the said proceedings.
15
16. Further, the Forensic Science Laboratory report
st
was presented by the Investigating Officer(PW-14) on 1
rd
and 3 December, 2016 and the trial Court took it on
record. However, the order sheets of the trial Court are

15
Hereinafter, referred to as the ‘FSL’.
13
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totally silent on the aspect of whether the copy of the
said FSL report was ever provided to the appellant. For
th
the first time on 11 January, 2017, on the request
being made by the appellant, one Shri S.P. Singh,
Advocate, was appointed as an amicus curiae to
represent him in the trial. It is pertinent to note that the
recording of the evidence of prosecution witnesses
th
began on the very same day, i.e., 11 January, 2017,
and the process was concluded within 27 days, i.e., on
th
6 February, 2017. During this short period, the amicus
curiae appointed to defend the appellant was changed
st
on 31 January, 2017. In view of the above sequence of
events, there is no possibility that the defense counsel
could have had a reasonable opportunity to prepare the
matter and conduct the cross-examination from the
witnesses. Thus, it is established beyond the pale of
14
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doubt that the trial was not conducted in a fair manner
and that the appellant was not provided with a
reasonable opportunity to defend himself.
17. Be that as it may, now we shall proceed to discuss
the evidence of the prosecution witnesses who testified
in the trial.
18. Brajpal Singh(PW-1), being the father of the child-
victim gave evidence stating that his daughter (child-
victim) went missing from a Jagran function. The dead
body of the child-victim was recovered from a nearby
16
field, whereby, he lodged the FIR at the Police Station
Kashipur. This report came to be filed around 10:00 AM
th
on 26 June, 2016. However, what is most significant
to note is that, although the witnesses of last seen

16
Supra note 11.
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circumstance claim in their depositions that they were
present at the crime scene when the dead body of the
child-victim was found, and police had arrived.
Surprisingly, the FIR gives no indication whatsoever
that anyone had seen the child-victim in the company
of the appellant, who operated the sound and light at
the Jagran function. The witnesses of the last seen
theory claim to be present at the spot where the dead
body was found but none of them divulged to the police
officials who reached the spot that he/she had seen the
child-victim and the accused-appellant moving
together.
19. Jasweer Singh(PW-2) stated that he had come to
the village Dhakiya Gulabo to meet his relatives. He also
went to the Jagran function. The incident took place on
th th
the night of 25 June, 2016. In the morning of 26
16
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June, 2016, at about 6:15 AM-6:30 AM, he came to
know that the dead body of a girl child was lying in the
nearby field. Out of curiosity, he also went there. He
claimed that the dead body which he saw was of the
same girl, whom he had seen in the night time
accompanying a person who was doing the work of
sound and light in the Jagran function and was being
addressed by the name Rajiya @ Raju, by other people.
The witness stated that he had seen the child-victim
going with the said person in the middle of the night. In
cross-examination, the witness admitted that he did not
know the appellant prior to the date of the incident.
20. What is important to note here is that the
witness(PW-2) was not made to identify the appellant in
the dock as being the person with whom the child-
victim was seen going away.
17
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21. Anand Pal Singh(PW-3) also testified almost on the
same lines as Jasweer Singh(PW-2). This witness too
did not identify the appellant in the dock as being the
suspect with whom the child-victim was seen going
away. However, both Jasweer Singh(PW-2) and Anand
Pal Singh(PW-3) stated that the appellant was wearing
spectacles.
22. Sheespal(PW-4) was a formal witness who gave
evidence regarding the inquest proceedings and
preparation of the inquest memo .
23. Smt. Rashmi Devi(PW-5) also gave evidence of last
seen circumstance. She alleged that in the night at
about 3 o’clock, she saw the person who was doing the
task of sound and light at the Jagran function, talking
to the child-victim. Thereafter, both of them were seen
going towards Dhakiya Gulabo road. This witness also
18
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was not made to identify the appellant in the dock as
being the person who was seen going away with the
victim. She admitted in her cross-examination that she
had never seen the appellant before the incident and
that she identified him with the help of a photograph
which was published in the newspaper. The
witness(PW-5) further admitted that her statement was
recorded by the police on the same day on which she
saw the photograph in the newspaper. The fact that the
photograph of the appellant was published in a
newspaper and that this witness of last seen theory got
wise about the identity of the assailant thereafter,
makes her testimony suspect.
24. Munesh Singh(PW-6) is another witness of last
seen circumstance. The testimony of this witness is also
on the same lines as that of PW-2, PW-3, and PW-5.
19
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This witness also was not made to identify the appellant
in the dock as being the suspect with whom the child-
victim was seen going away.
25. Dr. Madan Mohan, medical officer(PW-7)
conducted the post-mortem examination on the body of
the child-victim. He opined that the child-victim had
been subjected to forcible sexual assault and that she
may have died as a result of asphyxia because of
pressure applied during the act of sexual assault. He
also conducted the medical examination of the
appellant and collected samples of the appellant for
serological and DNA examination. The medical officer
made a vague assertion in his evidence that all the
samples which he had collected were handed over to the
policeman who had brought the appellant to the
hospital. However, he neither disclosed the name of the
20
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policeman to whom the samples were handed over nor
did he state that the samples were sealed and were
handed over to the policeman in a secure condition. The
witness did not refer to any document or receipt under
which the samples were handed over to the policeman.
26. Brajesh Kumar(PW-8) deposed that the Jagran
function was being conducted by his group i.e., the
Ridhi-Sidhi Jagran Mandali and that the appellant was
taking care of the sound and light arrangements. The
appellant had worked with his group, on earlier
occasions as well. The witness further claimed that after
completing his task, the appellant was sitting near the
place where the artists were changing their clothes.
Sometime later, the appellant brought two small girls to
the artists and suggested that they should be dressed
up as Matas (Deities) but the artists refused, on which
21
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the appellant went away with the girls. On the next
morning, the parents of one of the girls approached the
group and complained that their daughter had not
reached home whereafter, the witness(PW-8) also
participated in the search proceedings. In cross-
examination, the witness candidly admitted that he did
not see the appellant taking away the child-victim with
himself.
27. Saroj Kamboj(PW-9) was posted as the Sub-
Inspector, Mahila Helpline, Kashipur. She took formal
steps pertaining to the investigation. She handed over
the dead body of the child-victim to Constable Neelam
Kanta(PW-10) and Constable Naveen Sharma for the
post-mortem examination. The witness also moved an
application to the medical officer(PW-7) for conducting
post-mortem examination and preserving the forensic
22
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samples for analysis. However, the prosecution did not
take the trouble of proving this application in the
testimony of PW-9. Nothing turns on the testimony of
this witness so far as the charges against the appellant
are concerned.
28. Neelam Kanta(PW-10) was a Lady Constable
posted at CCR Kashipur. She also gave formal evidence
in respect of the inquest proceedings on the dead body
of the child-victim, etc. In her evidence, there is nothing
material which may connect the appellant with the
crime.
29. Shiva Asthana(PW-11) claimed that he was the
operator of the Ridhi-Sidhi Jagran Mandali and that the
appellant used to do the work of sound and light for the
group. The Jagran Mandali conducted a programme at
th
the Fasiyapura T-Cross on 25 June, 2016. On that
23
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day, the appellant had accompanied them for doing the
job of light and sound. After his work was finished, the
appellant was sitting near the place where artists were
changing their clothes. At about 2:30 AM in the night,
two small girls were playing there whom the appellant
took to the artists and suggested that they should be
dressed up as Matas (Deities). The artists refused on
which the appellant went away with the girls. When the
witness was offered for cross-examination, the legal aid
counsel provided to the appellant refused to continue
with the case upon which another Advocate, namely
Shri Neeraj Ranjan, was asked to represent the accused
(appellant herein). The said counsel was not given any
time to prepare the brief and was compelled to conduct
the cross-examination on the same day. On a question
being put to the witness(PW-11) in cross-examination,
24
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he answered that he did not see the appellant taking
away the child-victim and that some persons who were
doing the background decoration had given him this
information. Clearly thus, the testimony of this witness
on the aspect of identification of the accused-appellant
is wavering and does not inspire confidence.
30. Prahlad Singh(PW-12) was posted as Sub-
Inspector at Police Station Transit Camp. He
accompanied the Investigating Officer(PW-14) to the
crime scene on receiving information about the
incident. He arrested the appellant who was seen
standing near a Petrol Pump. The witness also stated
that when the appellant was arrested, he observed
numerous stains of blood and semen, etc. on his t-shirt.
The clothes of the appellant were seized and sealed.
However, the witness remained totally silent regarding
25
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the fate of these articles after the same were allegedly
seized and sealed.
31. Anuj Tyagi(PW-13) was posted as a Constable at
Police Station Kashipur. He gave evidence regarding the
transmission of the forensic samples/articles related to
the case in compliance of the directions given by the
trial Court. The witness stated that he deposited the
th
articles at the FSL on 29 June, 2016. However, he was
totally silent regarding the mode and manner in which
he received the sample packets. He also did not utter a
word regarding the date of receipt and date of deposit of
the samples.
17
32. Om Prakash Sharma, Inspector of Police(PW-14)
conducted the investigation of the case. He carried out

17
Hereinafter referred to as the “Investigating Officer(PW-14)”.
26
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the inquest proceedings; prepared the site inspection
plan and collected the forensic samples/articles from
the place of the incident. The witness stated that during
th
the investigation, on 27 June, 2016, the secret
informers told him that rumors were rife amongst the
villagers that the crime had been perpetrated by the
appellant, and he had been seen by several persons,
taking away the child-victim. Evidence of this witness
completely impeaches the credibility of the witnesses of
the last seen theory and creates a grave doubt whether
they had actually seen the appellant taking away the
child-victim from the crime scene.
33. The incident took place on the intervening night of
th th
25 /26 June, 2016. The witnesses of the last seen
theory, i.e., Jasweer Singh (PW-2), Anand Pal Singh
(PW-3), Smt. Rashmi Devi (PW-5), Munesh Singh (PW-
27
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6), Brajesh Kumar(PW-8) and Shiva Asthana(PW-11)
categorically stated that they saw the appellant who was
doing the job of sound and light in the Jagran function,
taking away the child-victim with him. If at all, there
was an iota of truth in this version of the witnesses of
last seen theory, then there was no reason as to why
they kept silent and failed to give this vital information
to the police officers who arrived at the spot to
th
investigate the matter in the early morning hours of 26
June, 2016. Manifestly, going by the evidence of the
Investigating Officer(PW-14), no witness came forward
th
with this theory till 27 June, 2016.
34. Furthermore, the witnesses of the last seen theory
testified that they were already present at the site where
the dead body of the child-victim was found, and police
th
had also reached there in the early hours of 26 June,
28
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2016. The FIR in respect of the incident came to be
registered around 10:00 AM and the said FIR does not
contain a whisper that anyone from the village had seen
the child-victim in the company of the appellant, any
time prior to her dead body being found.
35. Hence, in our considered opinion, the conduct of
these witnesses in remaining silent and not disclosing
to the police regarding they having seen the appellant
taking away the child-victim with himself, completely
demolishes the prosecution case regarding the theory of
last seen.
36. We may also observe that indisputably, the
appellant was not known to PW-2, PW-3, PW-5, and
PW-6 from before. However, no test identification
parade proceedings were conducted by the Investigating
Officer(PW-14), to ascertain the identity of the appellant
29
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as being the suspect, who took away the child-victim
with himself.
37. Further doubt is created on the bona fides of the
Investigating Officer(PW-14) who had tried to stick the
case on to the appellant by getting his confessional
statement recorded but neither the trial Court nor the
High Court placed reliance on the said confessional
statement and hence, we need not delve upon the same
because these concurrent findings recorded by both the
Courts remain unchallenged and have attained finality.
38. The circumstance of the ‘last seen’ having been
disbelieved and ‘confessional statement’ having been
discarded, the only other circumstance which remains
in the hands of the prosecution to connect the appellant
with the crime as relied upon by the trial Court and the
High Court are the DNA/FSL reports. The DNA/FSL
30
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reports were proved by Om Prakash Sharma,
Investigating Officer(PW-14). The conclusions drawn in
18
the DNA report are as follows: -
• The DNA obtained from the Exhibit-15 (t-
shirt of accused) is from a single female
human source and matching with the DNA
obtained from the Exhibit-1 (blood sample of
the deceased).
•
The DNA obtained from the Exhibits-2, 3, 4
and 6 (hair of suspected, vaginal smear slide
of deceased, paizami of deceased and
underwear of deceased) are matching with
the DNA obtained from the Exhibits-1 and 10
(blood sample of deceased and blood sample
of accused).

18
Exhibit Ka-19.
31
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39. The first flaw in the prosecution case on the aspect
of DNA profiling is that the expert who conducted the
DNA examination was not examined in evidence and the
DNA report was merely exhibited in evidence by the
Investigating Officer(PW-14) who undeniably is not
connected with the report in any manner. This Court in
the case of Rahul v. State of Delhi, Ministry of Home
19
Affairs & Anr. , while dealing with the issue
concerning evidentiary value of DNA report, has held
that DNA profiling reports cannot be admitted in
evidence ipso facto by virtue of Section 293 CrPC and it
is necessary for the prosecution to prove that the
techniques of DNA profiling were reliably applied by the
expert. The relevant excerpts from the said judgment

19
(2023) 1 SCC 83.
32
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are reproduced hereinbelow for the sake of ready
reference: -
“36. The learned Amicus Curiae has also assailed
the forensic evidence i.e. the report regarding the
DNA profiling dated 18-4-2012 (Ext. P-23/1), giving
incriminating findings. She vehemently submitted
that apart from the fact that the collection of the
samples sent for examination itself was very
doubtful, the said forensic evidence was neither
scientifically nor legally proved and could not have
been used as a circumstance against the appellant-
accused. The Court finds substance in the said
submissions made by the Amicus Curiae. The DNA
evidence is in the nature of opinion evidence as
envisaged under Section 45 and like any other
opinion evidence, its probative value varies
from case to case.
38. It is true that PW 23 Dr B.K. Mohapatra, Senior
Scientific Officer (Biology) of CFSL, New Delhi had
stepped into the witness box and his report
regarding DNA profiling was exhibited as Ext. PW
23/A, however mere exhibiting a document,
would not prove its contents. The record shows
that all the samples relating to the accused and
relating to the deceased were seized by the
investigating officer on 14-2-2012 and 16-2-2012;
and they were sent to CFSL for examination on 27-
2-2012. During this period, they remained in the
malkhana of the police station. Under the
circumstances, the possibility of tampering
with the samples collected also could not be
ruled out. Neither the trial court nor the High
Court has examined the underlying basis of the
findings in the DNA reports nor have they
examined the fact whether the techniques were
33
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reliably applied by the expert. In the absence of
such evidence on record, all the reports with
regard to the DNA profiling become highly
vulnerable, more particularly when the
collection and sealing of the samples sent for
examination were also not free from suspicion. ”
(emphasis supplied)
40. Thus, in the facts and circumstances of the
present case, non-examination of the scientific expert
who carried out the DNA profiling is fatal, and the DNA
report cannot be admitted in evidence. That apart, we
find that the very procedure of collection and forwarding
of DNA samples to the FSL is full of lacunae and
loopholes. The incident took place on the intervening
th th
night of 25 /26 June, 2016. The dead body of the
child-victim was picked from the crime scene by the
th
Investigating Officer(PW-14) on 26 June, 2016 at
06:16 AM and was forwarded to Dr. Madan Mohan,
medical officer(PW-7) for carrying out the post-mortem
examination. The medical officer, while deposing on
34
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oath, stated that he collected following samples and
articles from the child-victim’s dead body for forensic
examination. The relevant excerpt from his testimony is
reproduced below: -
“The following tests were sent from the
injuries of the deceased in her vagina.
No. 1: Extract was collected from the vagina and
four slides were prepared for spectro majoa and
smegma bacilli test and were sent to laboratory. 5
ml. blood was taken from the body of the deceased
and sent for DNA test.
The hair stuck on the vagina of the deceased and
blood accumulated outside the vagina were also
sent for DNA test. The following clothes of the
deceased were sent in a sealed bundle for semen
and blood test.
Clothing of the deceased: no.1. readymade blue
under wear stained with blood and mud. Printed
Salwar of the deceased of white and green colour,
stained with blood. One small towel with yellow
th
linings, one bracelet, number 5 :- Mud-stained
shirt of the deceased. The chip of the videography
of all above samples of the deceased and of post
mortem examination was sealed and handed over
to the accompanied constables.”
th
41. The medical officer(PW-7) also testified that on 28
June, 2016 at about 12:44 PM, a Constable named
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Girish Kandpal brought the accused-appellant to the
hospital for medical examination. The medical officer
stated he collected the following samples from the
appellant for forensic examination: -
“On 28.6.2016 at 12.44 PM in the noon,
Constable Girish Kandpal, P.S. Kashipur brought
the accused. In general examination the accused
was found healthy. On examination of sexual
organs of the accused, dense hair were found. Skin
over the glans of the penis of the accused was being
folded easily. The glans was neat and clean. There
was no blood mark but there were light mark of
abrasion around the glans in the circle. I have
taken following samples:
(1) Two slides were made from the swab of the
glans for DNA test.
(2) Blood of the accused was taken for DNA test.
(3) Samples of hair from the stomach and outside
of testicles were taken for DNA test.
(4) Two slides were made from the swab taken
from the glans of accused for examination of
spermatozoa and smegma vacilli.”
42. The medical officer(PW-7) also stated that the
samples of the deceased as well as the appellant were
handed over to the police officials who came to the
hospital at contemporaneous points of time. However,
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there is not even a whisper in the statement of the
medical officer(PW-7) that the samples collected from
the appellant were sealed prior to being handed over to
the police officials. Hence, at the very inception, the
procedure of collecting the samples has been tainted on
account of non-sealing of the forensic material collected
from the accused-appellant.
43. Now, we shall discuss the evidence of the police
officials who dealt with the samples/articles which were
forwarded to the FSL/DNA laboratory.
44. Saroj Kamboj(PW-9), Sub-Inspector, stated that
20
she gave an application to the medical officer(PW-7) at
the L.D. Bhatt Government hospital for conducting the
post-mortem examination on the dead body of the child-

20
Exhibit Ka-9.
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victim; to preserve the hair found on the reproductive
organs of the deceased; to make slides of vaginal smear
and to collect 5 ml blood for DNA test. However, Saroj
Kamboj(PW-9) did not give any follow-up evidence
regarding the fate of the samples, if any, prepared or
collected from the hospital. Thus, her evidence is
relevant only to the extent of submission of the
aforesaid application. If we consider her evidence in the
backdrop of the evidence of the medical officer(PW-7),
we find that he did not utter a single word regarding any
application having been submitted to him by any police
official for collecting these samples/articles.
45. Neelam Kanta(PW-10), lady Constable, stated that
she and Constable Naveen Sharma took the body of the
child-victim to the hospital for the purpose of post-
mortem examination. The Constable is completely silent
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regarding any samples having been handed over to her
by the medical officer(PW-7). Rather, she gave a very
surprising statement claiming that the Investigating
Officer(PW-14) handed over the dead body to her and
the male Constable for post-mortem examination, after
duly sealing the same. We fail to understand as to why
the dead body of the child-victim was sealed for the
purpose of conducting the post-mortem examination. In
sheer contrast, the medical officer(PW-7) did not utter a
word in his deposition that when he received the dead
body at the hospital, the same was sealed. Hence, there
is a grave contradiction in the evidence of the
prosecution witnesses on this vital aspect of the case.
46. Prahlad Singh(PW-12), Sub-Inspector, stated that
he, along with the other members of the police team,
launched a search for the appellant, who was arrested
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th
on 28 June, 2016 while standing near a petrol pump.
After being arrested, the appellant confessed to the
crime and also stated that the clothes which he was
wearing at the time of commission of the offence were
placed by him in a bag which he was carrying in his
hand. The appellant had also stated that he was
intending to throw the clothes but before he could do
so, he was caught by the police. We feel that the theory
put forward in the testimony of the said witness that the
appellant was carrying the worthless incriminating
articles, i.e., his clothes with him in a bag for almost
two days after the incident, is totally unbelievable. It is
clear as daylight that these recoveries have been
planted because it is hard, if not impossible, to believe
that the appellant who was a free bird and had an ample
opportunity to destroy the clothes would keep the same
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with him for almost two days after the incident so as to
facilitate the police to recover the same at a later point
of time.
47. The lopsided manner in which trial was conducted
is fortified from the evidence of Sub-Inspector Prahlad
Singh(PW-12) who was allowed to narrate the entire
confession of the appellant, in his examination-in-chief.
This procedure adopted by the trial Court in permitting
a police officer to verbatim narrate the confession made
by an accused during investigation is grossly illegal and
contrary to the mandate of Sections 24, 25 and 26 of
the Indian Evidence Act, 1872. Not only this, the trial
Court even allowed the confessional statement of the
appellant, to be exhibited in the evidence of the witness,
which further establishes that the trial was conducted
in a totally distorted manner.
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48. Anuj Tyagi(PW-13), who was posted as a Constable
at Police Station Kashipur deposed that he went to the
FSL to hand over the blood samples, hair samples and
two slides for DNA test relating to the case at hand. The
case property was deposited vide receipt No. 694/2016
th
dated 29 June, 2016. The said witness also stated that
constable Vijay Pal went to the FSL carrying with him
the case property related to the case under the order of
ACJM, Kashipur and higher police officials. Anuj
Tyagi(PW-13) proved the signatures of said Vijay Pal on
the documents. Nonetheless, no explanation is
forthcoming from the record as to why Constable Vijay
Pal himself was not examined by the prosecution.
49. What is significant to note from the evidence of
Anuj Tyagi (PW-13) is that he did not utter a single word
as to who handed him the sample packets and what was
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the condition of the sample packets when he carried the
same to the FSL.
50. Om Prakash Sharma, Investigating Officer(PW-
14), also gave evidence to the effect that he seized the
forensic samples from the crime scene where the body
of the child-victim was lying. He stated that the clothes
of the appellant were also seized upon his arrest, which
were found stained with blood and bore marks of
semen. Investigating Officer(PW-14) in his examination-
in-chief, also made a detailed narration of the
confessional statement made by the appellant and also
proved the said confessional statement, which again
reflects the total lackadaisical approach of the presiding
officer who conducted the trial.
51. The Investigating Officer(PW-14) also deposed that
the medical officer(PW-7) had handed over the
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samples/articles for forensic evaluation and DNA
profiling which were duly sealed and were sent for
scientific examination. However, the fact remains that
neither the documents/memorandums pertaining to
the proceedings of sealing the said samples/articles
were exhibited in evidence nor did any of the
prosecution witnesses gave evidence for proving this
vital procedure.
52. A vague assertion was made by the Investigating
th th
Officer(PW-14) that on 26 June, 2016 and 28 June,
2016, the clothes of the appellant along with samples of
his blood, hair and slides of vaginal smears and swabs
of the child-victim were prepared and sent to the FSL
for DNA profiling and forensic examination by the
permission of the Court.
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53. Nevertheless, the fact remains that the evidence of
the Investigating Officer(PW-14) is totally silent
regarding the deposit of these samples/articles in the
malkhana of the police station or the mode and manner
of transmission thereof from the police station to the
FSL. No forwarding letter pertaining to the transmission
of the samples was proved in the testimony of the
Investigating Officer(PW-14) or any other police witness.
The malkhana -in-charge of the police station was also
not examined by the prosecution.
54. In order to make the DNA report acceptable,
reliable and admissible, the prosecution would first be
required to prove the sanctity and chain of custody of
the samples/articles right from the time of their
preparation/collection till the time they reached the
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FSL. For this purpose, the link evidence would have to
be established by examining the concerned witness.
55. Evidently, there is not even a semblance of
evidence on record to satisfy the Court that the
samples/articles collected from the dead body of the
child-victim and those collected from the appellant
which were later forwarded to the FSL were properly
sealed or that the same remained in a self-same
condition right from the time of the seizure till they
reached the FSL. No witness from the FSL was
examined by the prosecution to prove that the
samples/articles were received in a sealed condition.
Hence, there is every possibility of the samples being
tampered/manipulated by the police officers so as to
achieve a favourable result from the FSL, thereby,
inculpating the appellant in the crime.
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56. Consequently, we feel that the DNA/FSL reports
cannot be read in evidence. Once, these reports of the
FSL are eschewed from consideration, there remains no
evidence on the record of the case so as to connect the
appellant with the crime.
57. Resultantly, the conviction of the appellant as
recorded by the trial Court and affirmed by the High
Court for the offences mentioned above cannot be
sustained.
th
58. The impugned judgments dated 5 April, 2017
th
and 6 April, 2017 passed by the trial Court and dated
th
5 January, 2018 passed by the High Court, do not
stand to scrutiny and are hereby quashed and set aside.
The appellant is acquitted of the charges. He is in
custody and shall be released from prison forthwith, if
not wanted in any other case.
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59. The appeals are allowed accordingly.
60. Pending application(s), if any, shall stand disposed
of.

….……………………J.
(VIKRAM NATH)


……………………….J.
(SANJAY KAROL)


...…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
MARCH 04, 2025.

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