Chattrapal Rawat vs The State Of Madhya Pradesh

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
1
CRRFC 5/2026 & Cr.A. No. 7346/2026

IN THE HIGH COURT OF MADHYA PRADESH
A T G W A L IO R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA

CRIMINAL REFERENCE CAPITAL No. 5 of 2026
CNR No.: MPHC030208312026
IN THE REFERANCE OF STATE OF MP

Versus

CHHATRAPAL RAWAT

Appearance:
Shri C. P. Singh, Govt. Advocate for State.
Shri R.K.Sharma, Senior Advocate with Shri Gaurav Samadhiya,
and Shri Abhijeet Singh Tomar, Advocate for respondent.


CRIMINAL APPEAL No. 7346 of 2026
CNR No.: MPHC030227372026
CHATTRAPAL RAWAT
Versus
THE STATE OF MADHYA PRADESH

Appearance:
Shri R.K.Sharma, Senior Advocate with Shri Gaurav Samadhiya,
and Shri Abhijeet Singh Tomar, Advocate for appellant.
Shri C.P.Singh, Govt. Advocate for State.


Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026


Reserved on : 7/10/2026
Pronounced on : 28 /10 /2026

JUDGMENT

Per : Justice Gurpal Singh Ahluwalia
1. By this common judgement, Criminal Reference Capital No.
5/2026 forwarded by the trial Court, under Section 366 of Cr.P.C/407 of
BNSS, and Criminal Appeal No. 7346/2026 shall be decided.

2. Both the cases arise out of judgement and sentence dated 21/7/2026
passed by Special Judge (under the POCSO Act, 2012), Datia in S.C. No.
15/2022, by which the accused has been convicted and sentenced for the
following offences:-
Default
Section Imprisonment Fine
Stipulation
Three years
363 of IPC
Rs.
One month‘s R.I.
1000/-
R.I.
Seven years
366 of IPC
Rs.
Six months‘ R.I.
2000/-
R.I.
Rs.
376A of IPC Death Sentence Six months‘ R.I.
5000/-
376AB of IPC No Separate Sentence
Rs.
302 of IPC Death Sentence Six months‘ R.I.
5000/-
5(m)/6 of POCSO
Rs.
Death Sentence Six months‘ R.I.
Act 5000/-
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

3. It is not out of place to mention here that earlier by judgement and
sentence dated 5/12/2022, Special Judge (POCSO Act, 2012)/Second
Additional Sessions Judge, Datia in the Special Sessions Trial No.
15/2022 had convicted the appellant and had awarded death sentence.
Against the said judgement and sentence, Criminal Reference No.
10/2022 was forwarded by the trial Court whereas Criminal Appeal No.
12641/22 was filed by the accused/appellant. By judgement dated 19th of
June 2026, both the cases were decided and in view of the fact that the
Investigating Officer namely Kamal Kishore Goyal (PW-20) was
examined and cross-examined in absence of the accused and in the light
of the provisions of Section 273 of Cr.P.C as well as in the light of
judgement passed by Supreme Court in the case of Atma Ram and
Others Vs. State of Rajasthan reported in (2019)20 SCC 481 , the
judgement and sentence passed by the trial Court was set aside and the
matter was remanded back to the trial Court for re-recording of evidence
of Kamal Kishore Goyal (PW-20) in presence of appellant. Accordingly,
the trial Court re-recorded the evidence of Kamal Kishore Goyal (PW-20)
in the presence of appellant and after re-recording the statement of
appellant under Section 313 of Cr.P.C in the light of evidence of Kamal
Kishore Goyal (PW-20), once again convicted the accused/appellant as
aforementioned and has awarded death sentence. Accordingly, Criminal
Reference No. 5 of 2026 has been received under Section 366 of Cr.P.C
for confirmation.
4. The facts necessary for disposal of present criminal reference as
well as criminal appeal, in short, are that on 09.05.2022, an information
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

was received by Police Station Goraghat from Control Room, Datia that a
dead body of a nine-year-old girl is lying in a field situated in village
Tilaitha. Accordingly, SHO - Kamal Goyal as well as Sub-Inspector -
Vandana Shakya went to village Tilaitha, where they came to know that
dead body of the deceased girl has been taken away from the field to her
village by her parents. Accordingly, the police party went to the house of
the deceased, where dead body of the deceased was lying under a neem
tree situated in front of the house of the deceased. On the information
given by father of deceased, Vandana Shakya recorded the merg
intimation. A dehati nalisi was also lodged by father of deceased (PW-2)
that on 08.05.2022, he had come to village Tilaitha to attend marriage of
one Reetendra. When the marriage rituals were going on, then at about
01:30 a.m. in the night, his wife informed him that the deceased is not
traceable. Thereafter, father of deceased and his wife inquired about the
deceased from their relatives, but they could not get any information
about her. Thereafter, father of the deceased (PW-2) called his brother
(PW-4) to village Tilaitha, and after he came to village Tilaitha, he gave
the entire information to him. Thereafter he, his wife, and his brother
started searching for the deceased in the fields. At about 11:00 a.m., they
found the dead body of deceased in a naked condition, and her body was
drenched with blood. They checked the pulse of the deceased and found
that she had already expired. Thereafter, they brought the dead body of
the deceased to their village. Thus, it was alleged that some unknown
person has committed murder of the deceased after committing rape on
her. The inquest report was prepared after filling up the Safina form.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

Postmortem of the dead body of the deceased was got done. Merg No.
16/2022 (Exhibit P-41) was registered, and on 09.05.2022 itself, FIR
(Exhibit P-42) was registered. Statement of cousin sister of the deceased
'A' (PW-1) was recorded, who informed that at about 12:00 in the night,
she and the deceased were sleeping on a cot. The music was being played
on the DJ. Appellant, who is a maternal uncle by relation, came to them
and took them inside the room where a cot was already lying. Appellant
instructed the witness that she has to sleep on the cot, but she did not sleep
and rushed towards her mother from the door situated on the back side of
the room. When again she came nearer to the cot where she was sleeping,
then she found that the deceased was being taken away by appellant.
When dead body of the deceased was recovered, then she narrated the
entire incident to her mother and mother of the deceased. The clothes, nail
clippings of both hands, vaginal smear, vaginal slide, anal swab, hyoid
bone, and viscera were preserved and were handed over to the police for
chemical and forensic examination. Cause of death of the deceased was
found to be asphyxia due to strangulation. Death of the deceased was
found to be homicidal in nature, and all the injuries sustained by the
deceased were caused within a period of 24 hours. The possibility of
sexual assault and rape was also found. On 10.05.2022, the spot map was
prepared. The scientific officer also came to the spot. The blood-stained
leaves and woods, plain woods and leaves, and Aadhaar card of the
accused were also seized from the spot vide seizure memo Exhibit P-9.
Appellant was arrested, and his disclosure statement (Exhibit P-10) was
recorded. On the basis of disclosure made by the appellant, shirt of the
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

appellant, as well as jeans of the deceased and pink-coloured
handkerchief, which was stained with blood, were seized vide seizure
memo Exhibit P-11. Statements of the cousin sister of the deceased, 'A'
(PW-1), complainant (PW-2), and mother of the deceased (PW-5) were
got recorded under Section 164 of the CrPC. The deceased was medically
examined. The blood sample of the deceased was collected for the DNA
test. The incriminating articles were sent to Forensic Science Laboratory,
Bhopal vide Draft Ex. P-31 and P-34. The hyoid bone preserved in
formalin was sent to the Forensic Medico-Legal Institution, Gandhi
Medical College, Bhopal vide draft Exhibit P-39. The school records of
the deceased were recovered. The police, after completing the
investigation, filed a charge sheet against the appellant under Sections
376AB, 302, 376A, 354A of the IPC and under Sections 5/6 of the
POCSO Act, 2012.
5. The Trial Court, by order dated 17.06.2022, framed charges under
Sections 363, 366, 376AB, 376A, 302 of the IPC and under Sections
5(m)/6 of the POCSO Act.
6. Appellant abjured his guilt and pleaded not guilty.

7. Prosecution examined cousin sister of the deceased, 'A' (PW-1),
father of deceased ‗B‘ (PW-2), Mausi of deceased ‗C‘ (PW-3), Tau of the
deceased ‗D‘ (PW-4), mother of deceased ‗E‘ (PW-5), Mausa of deceased
‗F‘ (PW-6), Dr. Anil Mangeshkar (PW-7), Dr. Daya Shankar Sharma
(PW-8), Dr. Jaibharat (PW-9), Ramkhilawan Jatav (PW-10), Sanjay Singh
Rawat (PW-11), Dr. Satish Kumar Man (PW-12), Vandana Shakya (PW-
13), Indal Singh Senger (PW-14), Priyanka Bhadoriya (PW-15), Lal
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

Singh (PW-16), Bhupendra Singh Jatt (PW-17), Dheeraj Kaushal (PW-
18), Vikram Shivhare (PW-19), and Kamal Kishore Goyal (PW-20).
8. Appellant did not examine any witness in his defence.
9. The Trial Court, by impugned judgment and sentence dated
21/7/2026 passed in S.C.No. 15/2022, convicted the appellant and
sentenced him for the offences mentioned above.
10. Challenging the judgment and sentence passed by the trial Court, it
is submitted by counsel for appellant that cousin sister of deceased, ‗A‘
(PW-1), is not a reliable witness. In fact, she is a created and concocted
witness. It is further submitted that evidence of a child witness has to be
considered with a pinch of salt because they are prone to tutoring. The
father of prosecutrix, ‗B‘ (PW-2), who had lodged the Dehati Nalishi, has
not stated that after the dead body of deceased was recovered, cousin
sister of the victim/deceased ‗A‘ (PW-1), had ever informed him about the
conduct of appellant in taking away the victim with him. On similar
grounds, the evidence of Masi of the victim/deceased ‗C‘ (PW-3), the
evidence of Tau of the victim/deceased ‗D‘ (PW-4), and the mother of the
victim/deceased ‗E‘ (PW-5), has been challenged. It is further submitted
that since the guidelines for DNA examination of incriminating articles
were not followed, and the samples were not kept at a temperature of
minus four degree, therefore, there was every possibility of destruction of
DNA profile. Even the recovery of clothes of deceased from the
possession of appellant was challenged as not reliable. It is submitted that
the chain of circumstance has not been proved by the prosecution as
required in the light of judgment passed in the case of Sharad
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC
1622 . In the alternative, it is submitted that it is clear from the report
submitted by the State in the light of judgment passed by Supreme Court
in the case of Aman Singh and another Vs. State of Bihar decided on
27/4/2026 in Criminal Appeal No. 002351-002352 / 2026 (SLP(Cri.)
No. 008408 - 008409 / 2026) , that appellant cannot be said to be a threat
to the society and the four criminal cases which were registered against
appellant were trivial in nature and therefore, the capital sentence awarded
by trial Court is unwarranted and the case in hand does not fall within the
category of rarest of rare cases. In support of his contention, learned
counsel has placed reliance on the decisions in the cases of Rajendra
Pralhadrao Wasnik v. State of Maharashtra reported in AIR 2019 SC
1, Raju Jagdish Paswan v. State of Maharashtra reported in AIR 2019
SC 897, Sachin Kumar Singhraha v. State of M.P. reported in AIR
2019 SC 1416, Sebastian v. State of Kerala reported in (2010) 1 SCC
58, Viran Gyanlal Rajput v. State of Maharashtra reported in (2019) 2
SCC 311, Rajkumar v. State of M.P. reported in (2014) 5 SCC 353 and
In Reference (Suo Motu) v. Yogesh Nath reported in ILR 2022 MP 722

11. Per contra , counsel for the State has supported the findings of guilt
recorded by the trial Court and on the basis of appreciation report, it is
submitted that appellant/accused is of criminal nature and it is true that on
previous occasions four offences of trivial nature were registered against
him, but that shows the conduct and the thought process of the accused. It
is submitted that since the accused is a threat to the society and the case is
of committing rape and murder of a minor girl aged about nine years,
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

therefore, the death sentence awarded by the trial Court should not be
interfered with.
12. Heard the learned counsel for the parties.
13. The first question for consideration is as to whether the victim/
deceased ‗X‘ was subjected to rape and whether her death was homicidal
in nature or not?
14. Dr. Anil Mangeshkar (PW-7), was one of the members of the team
constituted by Civil Surgeon Dr. K.C. Rathore, District Hospital, Datia,
for conducting the postmortem. In the post mortem report, the team noted
as under:-
Received dead body of a average built female measuring 131 cm in
length of average nourishment
Clothes worn by the deceaed
1. Whit gamcha with orange colour lines design on edges
2. Blue colour top made of Jeans like material with white fills
design
3. Red colour gamcha over the body
4. Metal bangle like Kada over the right wrist.
Dried blood stains present over the clothes at places.
External examination
Body lying in supine position on PM table, Rigor mortis present,
PM staining present over the back and is fixed. Face appears
congested. Eyes partially open. Mouth partially open, Cornea clear,
sub conjunctival hemorrhage present. Petechial haemorrhage
present all over the face, neck and upper chest. Tongue clenched in
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

between the teeth, vomitus oozing from the mouth. Bluish
discoloration of finger tips and nails of both hands present. Dried
blood stains present on the face, neck, both hands. Dried blood
stains present over the pelvic region and upper thigh (-illeg- aspect).
Fecal matter oozing out of the anal opening, mud stains present
over the back and hair.
External injuries:-
(1) Abrasion present over the right side of face, vertically placed
2.5 cm below the outer aspect of right eye measuring 2.7 cm × 1.2
cm, red in colour.
(2) Multiple small red colour abrasions of various size and shape
present over the lower and inner part of the right eye
(3) Multiple small abrasions of red colour, present over the lower,
inner aspect of left eye
(4) Red colour abrasion present over the left side of nose measuring
2.3 cm × 0.5 cm.
(5) Red colour abrasion over the lower aspect of right nostril
measuring 0.5 cm × 0.5 cm.
(6) Multiple small abrasions of various size and shape present over
the chin and both sides of mouth over an area measuring 8 cm × 4.5
cms, largest abrasion measuring 1.5 cm × 0.75 cm and smallest
measuring 0.5 cm × 0.25 cm, all appear red in colour.
(7) Multiple abrasions over the inner aspect of upper lip and outer
lip of red in colour, of various size and shape, extravasation of
blood present.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

(8) Neck: Multiple small red colour abrasions of various size and
shape present over the anterior aspect of neck, extending on both
the sides of the midline, over an area measuring 11 cms in length
and 2.2 cms in maximum breadth. It is in form of a irregular patch
which is situated 3 cms below the right ear, 5 cms below the chin
and 4.5 cms below the left ear. The area around this mark has
multiple scattered abrasions and contusions of various size and
shape in which the largest measure 0.9 cms × 0.4 cms and the
smallest measure 0.3 cm × 0.2 cm. On reflection of the skin over
the neck the area under the marks has extravasation of blood in the
subcutaneous tissue, strap muscles of the neck. The hyoid bone is
fractured with extravasation of blood at the fracture site. Trachea
and oesophagus are intact.
(9) Multiple red colour abrasions of various size and shape present
over the back over an area measuring 12 cm × 9.5 cms., the
smallest measure 0.5 cm × 0.5 cm and the largest measure 1.7 cm ×
0.9 cm.
(10) Two red colour parallelly placed abrasions present over the
thenar eminence, outer aspect of right hand measuring 2.2 cms ×
0.2 cms and 2.1 cms × 0.1 cms, placed 3.1 cm apart. It appear to be
a bite mark.
(11) External genitalia: Dried blood stains present over and around
the external genitalia extending upto the inner aspects of both thigh
labia majora and minora appears contused and oedematous, vaginal
opening enlarged. The anterior aspect of the vaginal walls are
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

contused appearing red in colour. The hymen shows fresh tears at
multiple locations with extravasation of blood at the tear site. The
urethral opening has a laceration with contused margins measuring
1.2 cm × 0.7 cm × superficial depth, margins are irregular and red,
there is extravasation of blood in surrounding tissue. The vaginal
cavity has a laceration of size 2.8 cm × 1.0 cm × superficial depth
in its right lateral wall, the laceration has irregular margins and is
red in colour with extravasation of blood, another deep seated
laceration present over the right lateral wall of vagina measuring
2.2 cm × 1.2 cm × superficial depth, it extends upto the posterior
fornix, margins are irregular and red, extravasation of blood
present. Triangular shape laceration with apex pointing upwards
and inwards present over the posterior vaginal wall measuring 2.2
cm × 1.2 cm × superficial depth, margins are irregular and red,
extravasation of blood present. Uterus and ovaries appear normal.
(12) Tear over the inferior pole of anus, horizontally placed
measuring 0.9 cms × 0.2 cms, margins irregular and red, anal
opening has multiple small contusions of various size and shape in
entire circumference, red in colour.
On examination, the doctor also found deep seated contusion over
the left side of temporal region of scalp measuring 7.5 cm x 5.5 cm.
On reflection of skin over the chest, he noticed multiple contusions
and extravastion of blood in layers of the chest wall. Pericardium
showed multiple petechial haemorrhages.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

Ante mortem injuries over the neck, external genitilia and at places
over the body.
(1) Clothes preserved, sealed and handed over to the concerned
police.
(2) Finger nail clippings of both hands preserved separately on
white paper
(3) Vaginal smear on cotton swab and two vaginal slides.
(4) Anal swab
(5) Hyoid bone and trachea preserved in Formalin solution
(6) Sample solution of formalin
(7) Viscera preserved for chemical analysis
(a) Stomach and part of small intesine in supersaturated salt
solution
(b) Part of liver, part of spleen and half of each kidney in
supersaturated salt solution
(c) Supersaturated salt solution as control sample
In the opinion of doctor
(1) Death was due to ante mortem compression of neck causing
asphysxia. Mode of compression to be investigated
(2) Injuries over the body were ante mortem in nature
(3) Time since death; within one day.
The post mortem report is (Ex.P/18 and P/20).

15. According to the postmortem report, the cause of death was
compression of neck causing asphyxia and all the injuries over the body
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

were ante mortem in nature. Injury No.11 is with regard to the condition
of external genitals. The injury found on the private part of the deceased
clearly indicates that she was subjected to rape. Dr. Mangeshkar (PW-7)
was cross-examined in short. In cross-examination, he stated that he is a
specialist in forensic examination, whereas Dr. S.S. Tomar was from the
Gynecology department. The postmortem was done and a unanimous
opinion was given. He further stated that ―mode of compression to be
investigated‖, which was mentioned in the cause of death in the
postmortem report (Ex. P/20), was made only for the police to investigate.
He admitted that there is nothing in the postmortem report to show that
how and by what means the neck was pressed. He admitted that the
postmortem report (Ex. P/20), is in his handwriting. He admitted that the
opinion is in his handwriting. He denied that without any participation by
the other member of the postmortem team, he had signed the postmortem
report. He admitted that Article A-2, which is a DVD of postmortem, was
not sealed, but it was kept in a polythene with a stapler. He admitted that
Article A-2, which is a DVD, does not contain the date and time, but it
was submitted that in the postmortem report it was specifically mentioned
that the videography and photography of the postmortem was got done.
He denied that the postmortem report (Ex. P/20), was prepared by him out
of his own whims and wishes.
16. Thus, it is clear that not only the cause of death of the deceased was
compression of neck resulting in asphyxia, but she was also subjected to
rape.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

17. Now, the next question for consideration is as to whether the
appellant is the person who had committed rape and murder of the
deceased ‗X‘ or not.
18. The prosecution case is based on circumstantial evidence which can
be summarized as under:
1. Last seen together.
2. The recovery of dead body.
3. The recovery of the clothes of the deceased from the possession of
the appellant.
4. On a comparison by the DNA expert, the autosomal STR DNA
profile which was extracted from the viscera of the deceased was
found on the shirt belonging to the appellant, which was recovered
on his disclosure.
5. The handkerchief of the deceased, which was recovered on a
disclosure made by the appellant, was found to be containing the
mixed autosomal STR DNA profile, and the DNA extracted from
the viscera of the deceased was also found in the handkerchief of
the deceased ‗X‘, which was recovered from the possession of the
appellant.
6. Mixed autosomal STR DNA profile was recovered from the
underwear of the appellant, and the autosomal STR DNA profile
which was recovered from the viscera of the deceased was found in
the underwear of the appellant.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

7. The DNA profile of the appellant was found in the pant of the
deceased which was recovered on the disclosure made by the
appellant.
8. The DNA profile of the appellant was found in the shirt and the nail
clippings of the deceased.

19. Considered the above-mentioned evidences which were relied
upon by the prosecution.
20.
Before considering the ocular evidence, the Court would like to
refer to the law governing the field of circumstantial evidence as well as
the manner of appreciation of the evidence of child witness as well as
other witnesses.
21. The Supreme Court in the case of Sharad Birdhichand Sarda v.
State of Maharashtra reported in (1984) 4 SCC 116 has held as under:-
152. Before discussing the cases relied upon by the High
Court we would like to cite a few decisions on the nature,
character and essential proof required in a criminal case
which rests on circumstantial evidence alone. The most
fundamental and basic decision of this Court is Hanumant
v. State of Madhya Pradesh . This case has been uniformly
followed and applied by this Court in a large number of
later decisions up-to-date, for instance, the cases of Tufail
(Alias) Simmi v. State of Uttar Pradesh and Ramgopal v.
State of Maharashtra . It may be useful to extract what
Mahajan, J. has laid down in Hanumant case:
―It is well to remember that in cases where the evidence is
of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should in the first
instance be fully established, and all the facts so established
should be consistent only with the hypothesis of the guilt of
the accused. Again, the circumstances should be of a
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

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CRRFC 5/2026 & Cr.A. No. 7346/2026

conclusive nature and tendency and they should be such as
to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence so
far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and
it must be such as to show that within all human probability
the act must have been done by the accused.‖
153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned ―must or should‖ and not ―may
be‖ established. There is not only a grammatical but a legal
distinction between ―may be proved‖ and ―must be or
should be proved‖ as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra where the
observations were made: [SCC para 19, p. 807: SCC (Cri)
p. 1047]
―Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict and
the mental distance between ‗may be‘ and ‗must be‘ is long
and divides vague conjectures from sure conclusions.‖
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except
that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by the
accused.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.
155. It may be interesting to note that as regards the mode
of proof in a criminal case depending on circumstantial
evidence, in the absence of a corpus delicti, the statement of
law as to proof of the same was laid down by Gresson, J.
(and concurred by 3 more Judges) in King v. Horry thus:
―Before he can be convicted, the fact of death should be
proved by such circumstances as render the commission of
the crime morally certain and leave no ground for
reasonable doubt: the circumstantial evidence should be so
cogent and compelling as to convince a jury that upon no
rational hypothesis other than murder can the facts be
accounted for.‖
156. Lord Goddard slightly modified the expression
―morally certain‖ by ―such circumstances as render the
commission of the crime certain‖.
157. This indicates the cardinal principle of criminal
jurisprudence that a case can be said to be proved only
when there is certain and explicit evidence and no person
can be convicted on pure moral conviction. Horry case was
approved by this Court in Anant Chintaman Lagu v. State of
Bombay . Lagu case as also the principles enunciated by this
Court in Hanumant case have been uniformly and
consistently followed in all later decisions of this Court
without any single exception. To quote a few cases —
Tufail case, Ramgopal case, Chandrakant Nyalchand Seth
v. State of Bombay, Dharambir Singh v. State of Punjab .
There are a number of other cases where although
Hanumant case has not been expressly noticed but the same
principles have been expounded and reiterated, as in
Naseem Ahmed v. Delhi Administration, Mohan Lal
Pangasa v. State of U.P., Shankarlal Gyarasilal Dixit v.
State of Maharashtra and M.G. Agarwal v. State of
Maharashtra — a five-Judge Bench decision.

Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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22. The Supreme Court in that case of State of M.P. v. Balveer Singh,
reported in (2025) 8 SCC 545 has held as under:-
― 43. From the above exposition of law, it is clear that the
evidence of a child witness for all purposes is deemed to be
on the same footing as any other witness as long as the child
is found to be competent to testify. The only precaution
which the court should take while assessing the evidence of
a child witness is that such witness must be a reliable one
due to the susceptibility of children by their falling prey to
tutoring. However, this in no manner means that the
evidence of a child must be rejected outrightly at the
slightest of discrepancy, rather what is required is that the
same is evaluated with great circumspection. While
appreciating the testimony of a child witness the courts are
required to assess whether the evidence of such witness is its
voluntary expression and not borne out of the influence of
others and whether the testimony inspires confidence. At the
same time, one must be mindful that there is no rule
requiring corroboration to the testimony of a child witness
before any reliance is placed on it. The insistence of
corroboration is only a measure of caution and prudence that
the courts may exercise if deemed necessary in the peculiar
facts and circumstances of the case.‖
44. In Ratansinh Dalsukhbhai Nayak [ Ratansinh
Dalsukhbhai Nayak v. State of Gujarat , (2004) 1 SCC 64 :
2004 SCC (Cri) 7] this Court observed that merely because a
child witness is found to be repeating certain parts of what
somebody asked her to say is no reason to discard her
testimony as tutored, if it is found that what is in substance
being deposed by the child witness is something that he or
she had actually witnessed. It added that a child witness who
has withstood his or her cross-examination at length and
able to describe the scenario implicating the accused in
detail as the author of crime, then minor discrepancies or
parts of coached deposition that have crept in will not by
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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itself affect the credibility of such child witness. The
relevant observation reads as under: (SCC p. 68, para 8)
― 8 . The learned trial Judge has elaborately analysed
the evidence of the eyewitness. There is no reason as
to why she would falsely implicate the accused.
Nothing has been brought on record to show that she
or her father had any animosity so far as the accused
is concerned. The prosecution has been able to bring
home its accusations beyond the shadow of a doubt.
Further, the trial court on careful examination was
satisfied about the child's capacity to understand and
to give rational answers. That being the position, it
cannot be said that the witness (PW 11) had no
maturity to understand the import of the questions put
or to give rational answers. This witness was cross-
examined at length and in spite thereof she had
described in detail the scenario implicating the
accused to be the author of the crime. The answers
given by the child witness would go to show that it
was only repeating what somebody else asked her to
say. The mere fact that the child was asked to say
about the occurrence and as to what she saw, is no
reason to jump to a conclusion that it amounted to
tutoring and that she was deposing only as per
tutoring what was not otherwise what she actually
saw. The learned counsel for the appellant-accused
has taken pains to point out certain discrepancies
which are of very minor and trifle nature and in no
way affect the credibility of the prosecution version .‖
(emphasis supplied)
45. Similarly in State of M.P. v. Ramesh [ State of M.P. v.
Ramesh , (2011) 4 SCC 786 : (2011) 2 SCC (Cri) 493] it was
held that even if the statement of a child witness is found to
be tutored it can be relied upon, if the same is found to be
believable or inspire confidence after separating the tutored
part from the untutored portion. The relevant observation
reads as under: (SCC p. 792, para 13)
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

― 13 . Part of the statement of a child witness, even if
tutored, can be relied upon, if the tutored part can be
separated from the untutored part, in case such
remaining untutored part inspires confidence. In such
an eventuality the untutored part can be believed or at
least taken into consideration for the purpose of
corroboration as in the case of a hostile witness.‖
23. Thus the ocular evidence as well as the circumstantial evidence
shall be considered in the light of law laid down by Supreme Court in the
case of Sharad Birdhichand Sarda (Supra) and Balveer Singh (Supra)
Recovery of incriminating articles + DNA report
24. The appellant Chhatrapal was arrested on 10/5/2022 at 11:15 AM
vide arrest memo (Ex.P/12). The memorandum of appellant Chhatrapal
was recorded on 10/5/22 at 10:30 AM, (Ex. P/10) and on 10/5/22 itself at
11:00 AM, following articles were seized on disclosure made by the
appellant Chhatrapal vide seizure memo (Ex.P/11):-
A blue-colored shirt belonging to the appellant, a blue-colored jeans
pant of the victim, and 1 pink-colored handkerchief of the victim which
was stained with blood, were recovered from the other side of the canal.
25. On 10/5/22 itself, appellant Chhatrapal was sent for medical
examination and the MLC of the appellant Chhatrapal is Ex. P/22. The
medical examination of appellant Chhatrapal was done by Dr. D.S.
Sharma (PW8). As per the MLC report, smegma was found absent. 2
semen slides were prepared and sealed along with 1 underwear, nail
clippings, pubic hairs of the appellant were packed, sealed and handed
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

over to police constable. Penis swab was prepared and sealed, and was
handed over to police constable. According to the medical opinion, the
doctor could not find anything which may be suggestive of the fact that
the appellant is not capable of performing sexual intercourse.
26. Vide seizure memo (Ex. P/13), the articles which were sealed by
the doctor during medical examination of the appellant, including his nail
clippings, were seized on 10/5/22 at 17:15.
27. Dr. Jai Bharat Singh (PW 9) collected the blood sample of the
appellant vide identification form (Ex.P/15) and the blood sample was
sealed in EDTA vial and after putting the seal of District Hospital Datia,
the same was handed over to Police Constable Dheeraj Kaushal.
28. After conducting the postmortem of the deceased victim on
9/5/2022, clothes found on the dead body were preserved, sealed, and
handed over to the concerned police constable, fingernail clippings on
both hands were procured separately on a white paper, vaginal swab or
cotton swab and 2 vaginal slides were prepared, anal swab was prepared,
hyoid bone and trachea of the victim was preserved in formalin solution
and the viscera was preserved for chemical examination. Stomach and
part of small intestine was preserved in salt solution. Part of liver, part of
spleen, and half of each kidney was preserved in salt solution. The
aforesaid articles of the clothes, nail clippings, and the internal organs of
the victim were seized on 9/5/22 at 23:00 hours vide seizure memo Ex.
P/43. On 10/5/22, the Superintendent of Police District Datia, vide
requisition (Ex. P/31) sent the incriminating articles of the victim
including clothes, nail clippings, vaginal slide, cotton swab, anal swab,
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

small and large intestine, and the clothes, as well as the nail clippings of
the appellant to Director, FSL, Sagar. The aforesaid articles were received
by State Forensic Science Laboratory, Bhopal on 11/5/2022 vide receipt
(Ex.P/32).
29. As per the DNA test report (Ex.P/33) dated 29/6/22, all the articles
were found in sealed condition. Articles A, B, and C, i.e. the shirt of the
appellant, pant of the victim, and the handkerchief of the victim were
found sealed with the seal of police station, Goraghat, District Datia,
whereas articles D, E, F, G, L and M i.e. clothes of victim, nail clippings
of the victim, vaginal slide and swab of the victim, anal swab of the
victim, stomach, small and large intestine, and, solution, as well as,
articles H, I, J, and K, which are the underwear, nail clippings, penis
swab, and blood sample of appellant, Chhatrapati, were found sealed with
the seal of Medical Officer, District Hospital, Datia.
30. In DNA test report (Ex. P/33), mixed DNA profiles were found on
the pant of the victim which was seized on the disclosure made by the
appellant, Chhatrapal and the DNA profile of the appellant was also
found on the pant of the victim; on the shirt and nail clippings of the
victim, which were sealed by the autopsy surgeon, DNA profile of
appellant was found . On the shirt of appellant, the DNA profile of the
victim, which was extracted from her viscera, was found; on the
underwear of appellant, the DNA profile of the victim, which was
extracted from her viscera, was found.
31. From the DNA test report, it is also clear that on the handkerchief
of the victim which was recovered on the disclosure made by the
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

appellant Chhatrapal, mixed autosomal STR DNA profile was found and
the DNA profile of the victim which was extracted from her viscera was
also found on the handkerchief of the victim. From the nail clippings of
the appellant, as well as penis swab of the appellant, uninterpretable low
autosomal STR DNA profile were found.

32. Challenging the DNA test report, it is submitted by counsel for
appellant that the prosecution has failed to prove the recovery and seizure
of the clothes of the victim on the disclosure made by the appellant. It is
submitted that the Investigating Officer had already inspected the spot on
9/5/2022, and did not find any incriminating article, but on 10/5/2022, it
was shown that on the disclosure made by the appellant, a blue-colored
jeans and the pink-colored handkerchief of the victim were seized. It is
submitted that in fact, the recovery of the blue-colored jeans and the pink
handkerchief of the victim on the disclosure of the appellant is concocted.
33. Heard the submission made by counsel for the appellant.
34. Kamal Kishore Goyal (PW20) was re-examined by the trial Court
after the matter was remanded back by this Court. He has stated that on
9/5/2022, he was posted as SHO, Police Station, Goraghat, District Datia.
He received information from the villagers of village Bharsula that a dead
body of a 9-year-old girl is lying in the bushes in a pool of blood.
Thereafter, he went towards village Tilataitha-Bharsula along with his
staff. In village Bharsula, the dead body of a girl was lying covered with a
cloth. He removed the cloth and found that the pant was not on the dead
body, the dead body was stained with blood, and the blood had dried
down after oozing out from her private part. The senior officers were
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

informed. On the information given by Control Room, Datia, Sub
Inspector Vandana Shakya also reached on the spot. Since the offence was
committed with a 9-year-old girl, therefore, merg intimation, Dehati
Nalishi, FIR, etc., were recorded by Sub Inspector Vandana Shakya. On
the very same day, he issued Safina form (Ex. P/6) and notices were
issued to witnesses. The Shav Panchnama (Ex.P/7) was prepared. He
prepared a requisition for postmortem of the dead body of the victim,
which is Ex. P/18. The dead body of the victim was sent for postmortem
along with a lady constable whose duty certificate is Ex. P/49. The
statements of the witnesses were recorded. On 10/5/22, he inspected the
area which is on the other side of the canal in the presence of the
complainant. The spot map is Ex. P/8. The place of incident was marked
as A-1, and the place where the dead body of the victim was kept by the
family members of the victim was marked as A-2. FSL Officer Satish
Maan carried out the inspection of the spot. On the very same day, he had
seized blood stained leaves, plain leaves, blood stained wood, plain wood,
and Aadhar card of the appellant vide seizure memo (Ex. P/9). A white-
colored envelope was opened in which the Aadhar card of the appellant
was found, which is Ex. P/50. Accordingly, the accused, appellant was
searched and he was interrogated. He voluntarily disclosed that on 9/5/22,
he had gone to attend the marriage in the family of Indar Singh Rawat. He
disclosed about the manner in which the offence was committed and also
disclosed the place where the articles were kept by him. On memorandum
of appellant (Ex.P/10), 1 blue-colored shirt of the appellant and 1 blue-
colored jeans pant and pink-colored handkerchief of the victim which was
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
26
CRRFC 5/2026 & Cr.A. No. 7346/2026

stained with blood, were recovered and seized vide seizure memo (Ex.
P/11). On the very same day, he had arrested the appellant, vide arrest
memo (Ex. P/12). The information regarding arrest of the appellant was
given to his relative, vide Ex. P/51. On the very same day, the
accused/appellant was sent for medical examination vide Ex. P/22. On the
very same day, he had seized the incriminating articles of accused which
were brought by Constable Dheeraj Kaushal from District Hospital Datia,
vide seizure memo Ex. P/13. The blood sample of the accused, along with
the specimen sample of seal, were also brought by Constable Dheeraj
Kaushal from District Hospital Datia, which was seized vide seizure
memo Ex. P/14. The blood stained shirt of the appellant is Ex.A. The
bloodstained blue-colored jeans of the victim is Ex.B. The bloodstained
pink-colored handkerchief of the victim is Ex.C. The clothes of the
victim, which were brought by Police Constable Priyanka Bhadoriya from
District Hospital Datia is Ex.D. The nail clippings of the deceased are Ex.
E. The sealed box containing 2 vaginal swabs, cotton swab of the victim is
Ex F. The anal swab of the victim sealed in a box is Ex.G. The underwear
of the appellant is Ex.H. The sealed nail clippings of the appellant are Ex.
I. The sealed penis swab of the appellant is Ex. J. Sealed blood sample of
the appellant stored in EDTA vial is Ex. K. The stomach, as well as small
and large intestine of the victim sealed in a box are Ex.L. The solution,
sealed in a box is Ex. M. A query was sent to Civil Surgeon District
Hospital, Datia (Ex.P/56) by Incharge- Police Station, Goraghat. The
query report sent by Dr. Anil Mangeshkar is Ex. P/21. On 22/5/2022 he
had sealed 4 compact CDs, (CD of Eagle Company), containing the
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

videographs of the spot, statements, postmortem and recording of the
FIR, as well as had also seized 8 photographs of the spot along with a
certificate under Section 65B of the Evidence Act vide Seizure Memo
(Ex. P/45). The photocopies are Ex. A-67 to A-74, and the CDs are
Article A-1, A-2, A-65, and A-66. Requisition for recording statement of
the eyewitness under Section 164 of CrPC was sent on 10/5/2022, which
is Ex. P/52. The pant of the victim, shirt of the accused and handkerchief
of victim, which were seized by this witness, were identified by him
which were marked as Article A-5, A-3, and A-7 respectively.
35. From the evidence of this witness, it is clear that the viscera and
internal organs of the victim, nail clippings, vaginal swab and cotton swab
of victim, were sealed by autopsy surgeon at the time of post mortem and
were seized by the Police on 9/5/2022 itself. No question was put to this
witness with regard to seizure of the incriminating articles of the deceased
vide seizure memo (Ex.P/43). According to the seizure memo, these
articles were seized on 9/5/2022 at 23.00 hours. Post mortem of the victim
was done on 9/5/2022 at 5.10 pm and the internal organs, clothes and nail
clippings etc. of the deceased were sealed by Dr. Anil Mangeshkar
(PW7). Thus, it is clear that the shirt, vaginal swab and cotton swab of the
victim, internal organs of the victim including viscera and nail clippings
of the victim were sealed on 9/5/2022 at 5:10 PM, which were seized by
Police on production of the same by Priyanka Bhadauriya vide seizure
memo (Ex.P/43).
36. Priyanka Bhadauriya (PW15) has specifically stated that on
9/5/2022 she had taken the dead body of the deceased to the District
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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CRRFC 5/2026 & Cr.A. No. 7346/2026

Hospital, Datia for postmortem. The requisition for postmortem is
Ex.P/18. She had brought one sealed box containing the kidney, liver,
spleen, another box containing stomach, small and large intestine, one
sealed box containing hyoid bone, one sealed box containing formalin,
one sealed box containing sample solution, one sealed box containing the
nail clippings, one sealed box containing the vaginal slide and cotton
swab, one sealed box containing anal swab of the victim, as well as the
specimen of seal of District Hospital, Datia and in another bag, she had
brought the clothes of the victim to Police Station Goraghat, which were
handed over to Head Constable Indal Singh Sengar in presence of
Constable Dheeraj and Rocky Rawat and were seized vide seizure memo
Ex.P/43. In her cross-examination, she has stated that the aforesaid
articles which were seized vide seizure memo Ex.P/43 were given by the
employees of District Hospital. She has further stated that she had not
opened the boxes, and the boxes were sealed and were containing the seal
of District Hospital, Datia. The doctor had also signed on the boxes.
However, she could not disclose the name of the doctor. She denied that
seizure memo (Ex.P/43) was not prepared in her presence.

37. Thus, it is clear that at the time of the postmortem, the internal
organs, the nail clippings, two vaginal swabs, cotton swab, one anal swab,
apart from the clothes of the shirt of the victim were sealed, which were
immediately handed over to police and which were ultimately seized vide
seizure memo Ex.P/43. By that time, the appellant was not in custody. No
question was put to Kamal Kishore Goyal (PW20), with regard to the safe
custody of these articles. Thus, it is clear that the safe custody of these
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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articles was never challenged by the appellant. The appellant was arrested
on 10/5/22 at 11:15 AM vide arrest memo (Ex.P/12). Therefore, in
absence of challenge to the safe custody of the incriminating articles of
the deceased, which were sealed by the doctor at the time of postmortem,
the presence of DNA profile of the appellant on the nail clippings as well
as the shirt of the victim, clearly indicates the involvement of the
appellant in the commission of the offence.
38. So far as the recovery of pant of victim on the disclosure made by
the appellant is concerned, it is submitted by counsel for appellant that, in
fact, this evidence was created by the prosecution. By referring to
paragraph 34 of evidence of Kamal Kishore Goyal (PW20), it is submitted
by counsel for appellant that this witness had admitted that on 9/5/22 and
10/5/22, he had not recovered any article other than the articles which are
mentioned in Ex.P/14 and on 9/5/22, when he went to the spot, he did not
find the Aadhaar card of the appellant. Therefore, the evidence of the
prosecution that apart from the recovery of pant of the victim on the
disclosure made by the appellant, Aadhaar card of the appellant was also
seized from the spot is suspicious and concocted.

39. Considered the aforesaid submission.
40. It is not out of place to mention here that the dead body of the
deceased was noticed by the family members of the deceased, and they
brought the dead body back to their house. This witness has explained that
when he went to the spot, he did not minutely inspect the spot because the
dead body of the deceased was already shifted to another place. He denied
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

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the suggestion that the recovery of Aadhaar card was falsely shown in the
police station.
41. Since arguments were advanced by the appellant with regard to the
place where the dead body was found and the place where the pink
handkerchief and blue pant of the victim were found, this Court had
played the compact disc containing the videography of the spot. From the
video, it was found that the blue jeans pant and a pink handkerchief of the
deceased were lying behind the bushes. However, this Court was unable
to find out the distance between the place where the dead body was found
and the place where the blue jeans pant and handkerchief of the deceased
victim were found.
42. From the DNA report, it is clear that the DNA profile of the
appellant was found on the pant of the victim, which was seized at the
behest of the appellant. No suggestion whatsoever was given to the
prosecution witnesses that the blood of the appellant was sprinkled over
the pant of the deceased in order to create an evidence. Similarly, in the
handkerchief of the victim, which was seized at the behest of the
appellant, the mixed autosomal STR DNA profile was found, and it was
also found that the DNA of the victim, which was extracted from her
viscera, was also found in the handkerchief of the deceased. One shirt of
the appellant was also seized from his possession and as per the DNA test
report (Ex.P/33), the DNA profile of the deceased, which was extracted
from her viscera, was found. Similarly, on the underwear of the appellant,
the DNA profile of the victim was found.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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43. Under these circumstances, where the seizure and safe custody of
shirt and nail clippings of the victim and presence of the DNA profile of
the appellant in the said articles as per the DNA report (Ex.P/33) (the
presence of DNA profile of victim on the clothes of appellant/accused)
was not challenged by the appellant, this Court is of the considered
opinion that the recovery of blue colored jeans pant of the victim at the
behest of the appellant is not to be doubted. The Investigating Officer
Kamal Kishore Goyal (PW20), has given an explanation that since the
dead body of the victim was already shifted from the place where the
offence was committed, therefore, he did not inspect the spot minutely,
appears to be plausible and reasonable. Under these circumstances, it is
held that on the disclosure made by the appellant, blue colored jeans and
pink colored handkerchief of the victim were seized from the spot and the
DNA test report (Ex.P/33) proves that the pink colored handkerchief was
that of the victim, and the DNA profile of the appellant was found on the
blue colored jeans pant of the victim.
44. Thus, not only the prosecution has successfully proved the seizure
of the nail clippings, internal organs, vaginal slide and swab, anal swab,
shirt of the victim by the autopsy surgeon Dr. Anil Mangeshkar (PW7),
but its seizure memo (Ex.P/43) has also been proved beyond reasonable
doubt and in absence of any challenge to the safe custody of these articles,
it is held that the articles were kept in safe custody and on the next day,
one blue colored jeans pant and pink colored handkerchief of the victim
was seized on the disclosure made by the appellant, and a shirt of the
appellant was also seized and the DNA profile of the appellant was found
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28

NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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on the incriminating articles of the deceased, as well as the DNA profile
of the victim was found on the incriminating articles of the appellant.
Last seen together.
45. ‗A‘, the cousin sister of the victim who is aged about eleven years,
was examined by prosecution as PW1. This witness, after looking at the
appellant through video conferencing, claimed that appellant is known to
her and his name is Chhatrapal. He is a resident of Bansgarh. She has
stated that appellant is her maternal uncle by relation. The victim was also
known to her. She was her cousin sister being the daughter of her Masi . In
the night of 08/05/22, marriage of the son of her Bua was fixed. She,
along with her mother, father, brother, sister, aunty, uncle, had gone to
attend the marriage. Lot of relatives had come in the marriage. Her Masi ,
her two daughters, including the victim and Mausaji had also come. It was
about 12:00 in the night. She, the victim, and the sister of the victim were
sleeping on a cot. At some distance, father-in-law of her Bua was also
sleeping. Other relatives were having their meals, some were dancing, DJ
was playing. At that time, appellant came nearer to the cot and dragged
her inside a room. A cot was lying in the room. The appellant instructed
this witness that she has to sleep on that cot, but she did not sleep on the
said cot and came out of the room from the door which is situated on the
backside of the room and went to her mother. Her mother was sitting
where the DJ was playing, She stayed back with her mother for a while,
and thereafter, she came back to the place where the cot was lying. She
found that appellant was taking the victim in his lap, and the victim was
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asleep. She got terrified, and slept on the same cot. In the morning, when
the relatives were searching for the victim and the dead body of the victim
was found near the canal, then she informed her mother, Masi , and other
relatives that in the night, the appellant had taken away the victim while
she was asleep. She further stated that earlier also her statement was
recorded in the Court and accordingly, at the request of the public
prosecutor, one sealed envelope containing the details of Crime No. 75/22
under Section 376AB, 302 of IPC and 5/6 of POCSO Act was opened,
which was containing the statements of this witnesses and parents of the
victim recorded under Section 164 of CrPC / 183 of the BNSS apart from
the order sheet dated 10/5/22, as well as an application for recording their
statements. She admitted that she had given her statement under Section
164 of CrPC as Ex.P/1. She also admitted that she had given a police
statement which was videographed. The compact disc containing the
videography of the recording of her statement is marked as Article A-1,
and the transcript was also marked as Ex.P/2. The packet containing CDs
were opened, and it was found that one of the CD was containing the
video recording regarding the recording of police statement of the
witnesses. The CD was played, and it was found that it was in a running
condition. A note was appended by the Court that when the statement
videographed by the police was matched with the transcript, then it was
found that the transcript was identical to what was stated by the victim.
This witness was cross-examined. She stated that she is a student
th
of class 6 , and her mother has two sisters and two brothers. Both the
maternal uncles are younger to her mother, and they are working in the
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city. However, she was not in a position to disclose the names of the cities
and the names of the offices in which her maternal uncles are working.
She further stated that appellant is the brother of her aunty. She had seen
the appellant for the first time in the marriage of her sister and the
appellant was known to her about one year prior to the date of incident.
Appellant used to come to meet her aunty. She was also on talking terms
with the appellant. Lot of relatives had come to attend the marriage, but
she clearly admitted that she does not know the names of all the relatives,
except the relatives who are the residents of the same house. She further
stated that she was sleeping outside the house on a cot along with her
sisters. She admitted that it was dark. She further stated that when the
appellant dragged her to the room, then neither she stopped the appellant,
nor raised any alarm, nor called anybody for her help. She claimed that at
that time, nobody was there. The room where she was taken by the
appellant is about 2-4 steps away from the cot. She had noticed the time
on the watch kept in the room of her Bua . The father-in-law of Bua was
sleeping about fifteen to twenty steps away from the place where she was
sleeping. She denied that because of night she could not notice as to who
was taking away the victim. She denied that at the instance of her parents,
she is disclosing the name of the appellant. She denied that because of
enmity, the appellant has been falsely implicated. She further stated that
she had disclosed for the first time to her mother and Masi about the fact
that it was appellant who had taken away the victim with him. She further
stated that she had disclosed this fact in the morning, but could not
disclose the exact time. She further claimed that she had not gone along
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with other persons to search out for the victim, but she stayed back in her
house. She further admitted that she had seen the appellant from behind
while he was taking away the victim in his lap. She denied that she has
been tutored by her parents. She further explained that the height of the
person who was taking away the victim in his lap was like that of the
appellant. Therefore, she has stated that it was the appellant who had
taken away the victim. She denied the suggestion that she had not seen the
incident.
46. In order to appreciate her evidence, this Court would like to
consider the law relating to the circumstance of last seen together.
47. The Supreme Court in the case of Digamber Vaishnav v. State of
Chhattisgarh reported in (2019) 4 SCC 522 has held as under:-
40. The prosecution has relied upon the evidence of PW 8 to
show that the accused and victims were last seen together. It is
settled that the circumstance of last seen together cannot by
itself form the basis of holding accused guilty of offence. If
there is any credible evidence that just before or immediately
prior to the death of the victims, they were last seen along with
the accused at or near about the place of occurrence, the needle
of suspicion would certainly point to the accused being the
culprits and this would be one of the strong factors or
circumstances inculpating them with the alleged crime
purported on the victims. However, if the last seen evidence
does not inspire the confidence or is not trustworthy, there can
be no conviction. To constitute the last seen together factor as
an incriminating circumstance, there must be close proximity
between the time of seeing and recovery of dead body.
41. In Arjun Marik v. State of Bihar [ Arjun Marik v. State of
Bihar , 1994 Supp (2) SCC 372 : 1994 SCC (Cri) 1551] , it has
been held as under: (SCC p. 385, para 31)
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― 31 . Thus the evidence that the appellant had gone to
Sitaram in the evening of 19-7-1985 and had stayed in the
night at the house of deceased Sitaram is very shaky and
inconclusive. Even if it is accepted that they were there it
would at best amount to be the evidence of the appellants
having been seen last together with the deceased. But it is
settled law that the only circumstance of last seen will not
complete the chain of circumstances to record the finding
that it is consistent only with the hypothesis of the guilt of
the accused and, therefore, no conviction on that basis alone
can be founded.‖
42. In Kanhaiya Lal v. State of Rajasthan [ Kanhaiya Lal v.
State of Rajasthan , (2014) 4 SCC 715 : (2014) 2 SCC (Cri)
413] , the Court has reiterated that the last seen together does
not by itself lead to the inference that it was the accused who
committed the crime. It is held thus: (SCC p. 719, para 12)
― 12 . The circumstance of last seen together does not by
itself and necessarily lead to the inference that it was the
accused who committed the crime. There must be something
more establishing connectivity between the accused and the
crime. Mere non-explanation on the part of the appellant, in
our considered opinion, by itself cannot lead to proof of guilt
against the appellant.‖

48. The Supreme Court in the case of Nizam v. State of
Rajasthan,(2016) 1 SCC 550 has held as under :
14. The courts below convicted the appellants on the evidence
of PWs 1 and 2 that the deceased was last seen alive with the
appellants on 23-1-2001. Undoubtedly, the ―last seen theory‖ is
an important link in the chain of circumstances that would point
towards the guilt of the accused with some certainty. The ―last
seen theory‖ holds the courts to shift the burden of proof to the
accused and the accused to offer a reasonable explanation as to
the cause of death of the deceased. It is well settled by this
Court that it is not prudent to base the conviction solely on ―last
seen theory‖. ―Last seen theory‖ should be applied taking into
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consideration the case of the prosecution in its entirety and
keeping in mind the circumstances that precede and follow the
point of being so last seen.
15. Elaborating the principle of ―last seen alive‖ in State of
Rajasthan v. Kashi Ram [(2006) 12 SCC 254 : (2007) 1 SCC
(Cri) 688] , this Court held as under : (SCC p. 265, para 23)
―23. It is not necessary to multiply with authorities. The
principle is well settled. The provisions of Section 106 of the
Evidence Act itself are unambiguous and categorical in laying
down that when any fact is especially within the knowledge of a
person, the burden of proving that fact is upon him. Thus, if a
person is last seen with the deceased, he must offer an
explanation as to how and when he parted company. He must
furnish an explanation which appears to the court to be probable
and satisfactory. If he does so he must be held to have
discharged his burden. If he fails to offer an explanation on the
basis of facts within his special knowledge, he fails to discharge
the burden cast upon him by Section 106 of the Evidence Act.
In a case resting on circumstantial evidence if the accused fails
to offer a reasonable explanation in discharge of the burden
placed on him, that itself provides an additional link in the chain
of circumstances proved against him. Section 106 does not shift
the burden of proof in a criminal trial, which is always upon the
prosecution. It lays down the rule that when the accused does
not throw any light upon facts which are specially within his
knowledge and which could not support any theory or
hypothesis compatible with his innocence, the court can
consider his failure to adduce any explanation, as an additional
link which completes the chain. The principle has been
succinctly stated in Naina Mohamed, In re. [1959 SCC OnLine
Mad 173 : AIR 1960 Mad 218] ‖
The above judgment was relied upon and reiterated in Kiriti
Pal v. State of W.B. [(2015) 11 SCC 178 : (2015) 5 Scale 319

49. The Supreme Court in the case of State of U.P. v. Satish, reported
in (2005) 3 SCC 114 has held as under:-
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22. The last-seen theory comes into play where the time-gap
between the point of time when the accused and the
deceased were last seen alive and when the deceased is
found dead is so small that possibility of any person other
than the accused being the author of the crime becomes
impossible. It would be difficult in some cases to positively
establish that the deceased was last seen with the accused
when there is a long gap and possibility of other persons
coming in between exists. In the absence of any other
positive evidence to conclude that the accused and the
deceased were last seen together, it would be hazardous to
come to a conclusion of guilt in those cases. In this case
there is positive evidence that the deceased and the accused
were seen together by witnesses PWs 3 and 5, in addition to
the evidence of PW 2.

50. The Supreme Court in the case of Ashok v. State of Maharashtra
reported in (2015) 4 SCC 393 has held that the initial burden of proof is
on the prosecution to adduce sufficient evidence pointing towards the
guilt of the accused. However, in case if it is established that the accused
was last seen together with the deceased, the prosecution is exempted
from proving the exact happening of the incident as the accused himself
would have special knowledge of the incident, thus, would have burden of
proof as per Section 106 of the Evidence Act. Therefore, last seen
together itself is not a conclusive proof but along with other circumstances
surrounding the incident, like relations between the accused and the
deceased, enmity between them, previous history of hostility, recovery of
weapon from the accused, etc. non-explanation of death of the deceased,
may lead to a presumption of guilt.
51. According to this witness, the appellant had taken away the victim
along with him at about twelve in the night. The dead body of the victim
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was noticed by her family members in the morning, and the FIR was
lodged on 9/5/2022 at 11:23 AM. The postmortem was conducted on
9/5/2022 at about 5:10 PM and the duration of death was found within one
day. The postmortem report is Ex.P/18 & P/20. Thus, it is clear that there
is a close proximity between the time when the victim was allegedly taken
away by the appellant and the time when the dead body of the victim was
noticed by her family members.
52. Although the counsel for the appellant tried to challenge and
demolish the evidence of this witness by submitting that this witness had
admitted that she had noticed the appellant from his back, therefore, there
is a possibility of mistaken identity, but in the considered opinion of this
Court, the aforesaid submission made by counsel for the appellant cannot
be accepted for the reasons that – (i) appellant was known to the victim at
least for the last one year, and he used to visit the house as well as this
witness also used to talk to him; (ii) at the time of incident, appellant had
taken this witness to a nearby room and had instructed her to sleep on a
cot. Therefore, the appellant had every opportunity to identify the victim
from a very close range; and (iii) this witness has also clarified the reasons
for identifying the appellant from behind, as she has specifically stated
that the height of the person who was taking away the victim was similar
to that of the appellant.
53. So far as the absence of light is concerned, it is suffice to mention
here that the eyes of the villagers are accustomed to see in the night. The
Supreme Court in Ramesh v. State, reported in (2010) 15 SCC 49 , has
held as under:
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“15. As stated earlier, the appellant and these two
witnesses (PWs 3 and 4) are neighbours and, therefore,
knew the appellant well and their claim of
identification cannot be rejected only on the ground
that they have identified him in the evening, when
there was less light. It has to be borne in mind that the
capacity of the witnesses living in rural areas cannot be
compared with that of urban people who are
acclimatised to fluorescent light. Visible ( sic visual)
capacity of the witnesses coming from the village is
conditioned and their evidence cannot be discarded on
the ground that there was meagre light in the evening.
There is nothing on record to show that these two
witnesses are in any way interested and inimical to the
appellant. Their evidence clearly shows that the
deceased was last seen with the appellant and the High
Court did not err in relying on their evidence.‖
54. Thus, this Court is of considered opinion that ‗A‘ (PW1) had every
occasion to notice the presence of the appellant on the spot from where
the victim was taken away by him and because of her acquaintance with
the appellant, it was possible for this witness to identify the appellant from
behind also, and she has specifically clarified the reasons for identifying
the appellant.
55. It was next contended by counsel for appellant that the father of the
victim ‗B‘ (PW2) had lodged Dehathi Nalishi (Ex.P/5) at 11:00 AM. In
the Dehati Nalishi, the father of victim had not disclosed that he has been
informed by the victim that it was the appellant who took away the victim
with him. Thus, the evidence of this witness becomes doubtful and as this
victim is a child witness and a close relative of the victim, therefore, she is
not a reliable witness.
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56. Considered the submissions made by counsel for appellant.
57. Father of the victim, ‗B‘ (PW2) has stated that when they recovered
the dead body of the victim in a naked condition, he found that there were
multiple injuries on her body. He, along with his brother and wife,
brought the dead body of the victim back to village Bharsola on a
Motorcycle. Thereafter, relatives were called. The police also reached the
spot, where he lodged the Dehati Nalishi (Ex.P/5). He further stated that
thereafter, the cousin sister of victim, A (PW-1), informed all the relatives
that earlier the accused/appellant, who is her maternal uncle, took her to a
room and instructed her to sleep on a cot lying in the room, but she ran
away and came to the place where marriage function was going on, and
thereafter, when she went back to the same place for sleeping, then she
found that the accused/appellant was taking away the victim along with
him.
58. It is submitted by counsel for appellant that since Dehati Nalishi
(Ex.P/5) was lodged at 11:00 AM, therefore, if this statement of father of
victim, ‗B‘ (PW-2), is accepted, then it would run contrary to what was
stated by cousin sister of the victim, A (PW-1). A (PW-1) has stated that
when the dead body of the victim was recovered near the canal, then she
had informed her mother, her Mausi / C (PW-3), and other relatives that
the victim was taken away by the accused/appellant. It is submitted that if
A (PW-1) had already informed the father, mother, and other relatives of
the victim about the fact of taking away of the victim by the appellant
immediately after the recovery of the dead body, then the said fact should
have been mentioned in the Dehati Nalishi (Ex.P/5), which is missing.
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Therefore, it is clear that A (PW-1) never saw the accused/appellant
taking away the victim with him. It was also submitted that A (PW-1) has
stated in Paragraph 11 of her deposition that she had narrated the incident
to the family members in the morning, but could not disclose the specific
time.

59. However, in Paragraph 11 of her cross-examination, ‗A‘ (PW-1)
has specifically stated that she did not go along with her relatives to
search out the vicim which clearly means that the relatives were informed
by A (PW-1) after the body was recovered and they had come back to the
house. Furthermore, minor omissions and contradictions in the evidence
of witnesses show that they are truthful and not tutored witnesses. The
Supreme Court in the case of Shyamal Ghosh v. State of W.B. reported
in (2012) 7 SCC 646 has held as under:-
68. From the above discussion, it precipitates that the
discrepancies or the omissions have to be material ones and
then alone, they may amount to contradiction of some serious
consequence. Every omission cannot take the place of a
contradiction in law and therefore, be the foundation for
doubting the case of the prosecution. Minor contradictions,
inconsistencies or embellishments of trivial nature which do not
affect the core of the prosecution case should not be taken to be
a ground to reject the prosecution evidence in its entirety. It is
only when such omissions amount to a contradiction creating a
serious doubt about the truthfulness or creditworthiness of the
witness and other witnesses also make material improvements
or contradictions before the court in order to render the
evidence unacceptable, that the courts may not be in a position
to safely rely upon such evidence. Serious contradictions and
omissions which materially affect the case of the prosecution
have to be understood in clear contradistinction to mere
marginal variations in the statement of the witnesses. The prior
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may have effect in law upon the evidentiary value of the
prosecution case; however, the latter would not adversely affect
the case of the prosecution.
69. Another settled rule of appreciation of evidence as already
indicated is that the court should not draw any conclusion by
picking up an isolated portion from the testimony of a witness
without adverting to the statement as a whole. Sometimes it
may be feasible that admission of a fact or circumstance by the
witness is only to clarify his statement or what has been placed
on record. Where it is a genuine attempt on the part of a witness
to bring correct facts by clarification on record, such statement
must be seen in a different light to a situation where the
contradiction is of such a nature that it impairs his evidence in
its entirety.
60. The Supreme Court in the case of Yogesh Singh v. Mahabeer
Singh reported in (2017) 11 SCC 195 has held that minor discrepancies
are not to be given undue emphasis, and evidence is to be considered from
the point of view of trustworthiness. The test is whether the same inspires
confidence in the mind of the Court or not. If the evidence is incredible
and cannot be accepted by the test of prudence, then it may create a dent
in the prosecution version. If an omission or discrepancy goes to the root
of the matter and ushers in incongruities, then the defence can take
advantage of such inconsistencies. However, every omission cannot take
the place of a material omission, and therefore minor contradictions,
inconsistencies, or insignificant embellishments do not affect the core of
the prosecution case and should not be taken as a ground to reject the
prosecution evidence.
61. A similar law has been laid down by the Supreme Court in the case
of Rohtas v. State of Haryana reported in (2019) 10 SCC 554 , where it
has been held that the mental capabilities of a human being cannot be
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expected to be attuned to absorb all the details, and minor discrepancies
are bound to occur in the statements of witnesses.
62. The Supreme Court in the case of Kuriya v. State of Rajasthan
reported in (2012) 10 SCC 433 has held that appreciation of evidence is
to primarily and clearly sift chaff from grain and find out the truthful
testimony of witnesses. Where the discrepancies do not affect the core of
the prosecution case, such discrepancies should not be attached undue
significance. The normal course of human conduct would be that while
narrating a particular incident, minor discrepancies may occur. Such
discrepancies, even in law, render credential to depositions.
63. The Supreme Court in the case of State of Karnataka vs.
Suvarnamma and another reported in (2015)1 SCC 323 , has held as
under:-
11. It is also well settled that though the investigating agency is
expected to be fair and efficient, any lapse on its part cannot per
se be a ground to throw out the prosecution case when there is
overwhelming evidence to prove the offence.
12. We may refer to the well-known observations from
decisions of this Court:
12.1. Shivaji Sahabrao Bobade v. State of Maharashtra [(1973)
2 SCC 793 : 1973 SCC (Cri) 1033 : (1974) 1 SCR 489] : (SCC
p. 801, para 8)
― 8 . Now to the facts. The scene of murder is rural, the
witnesses to the case are rustics and so their behavioural
pattern and perceptive habits have to be judged as such.
The too sophisticated approaches familiar in courts based
on unreal assumptions about human conduct cannot
obviously be applied to those given to the lethargic ways
of our villages. When scanning the evidence of the
various witnesses we have to inform ourselves that
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variances on the fringes, discrepancies in details,
contradictions in narrations and embellishments in
inessential parts cannot militate against the veracity of
the core of the testimony provided there is the impress of
truth and conformity to probability in the substantial
fabric of testimony delivered. The learned Sessions Judge
has at some length dissected the evidence, spun out
contradictions and unnatural conduct, and tested with
precision the time and sequence of the events connected
with the crime, all on the touchstone of the medical
evidence and the post-mortem certificate. Certainly, the
court which has seen the witnesses depose, has a great
advantage over the appellate Judge who reads the
recorded evidence in cold print, and regard must be had
to this advantage enjoyed by the trial Judge of observing
the demeanour and delivery, of reading the
straightforwardness and doubtful candour, rustic naiveté
and clever equivocation, manipulated conformity and
ingenious inveracity of persons who swear to the facts
before him. Nevertheless, where a Judge draws his
conclusions not so much on the directness or dubiety of
the witness while on oath but upon general probabilities
and on expert evidence, the court of appeal is in as good
a position to assess or arrive at legitimate conclusions as
the court of first instance. Nor can we make a fetish of
the trial Judge's psychic insight.‖
12.2. Bharwada Bhoginbhai Hirjibhai v. State of Gujarat
[(1983) 3 SCC 217 : 1983 SCC (Cri) 728] : (SCC pp. 222-23,
para 5)
― 5 . … We do not consider it appropriate or permissible to
enter upon a reappraisal or reappreciation of the evidence
in the context of the minor discrepancies painstakingly
highlighted by the learned counsel for the appellant.
Overmuch importance cannot be attached to minor
discrepancies. The reasons are obvious:
( 1 ) By and large a witness cannot be expected to possess
a photographic memory and to recall the details of an
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incident. It is not as if a video tape is replayed on the
mental screen.
( 2 ) Ordinarily it so happens that a witness is overtaken by
events. The witness could not have anticipated the
occurrence which so often has an element of surprise.
The mental faculties therefore cannot be expected to be
attuned to absorb the details.
( 3 ) The powers of observation differ from person to
person. What one may notice, another may not. An object
or movement might emboss its image on one person's
mind, whereas it might go unnoticed on the part of
another.
( 4 ) By and large people cannot accurately recall a
conversation and reproduce the very words used by them
or heard by them. They can only recall the main purport
of the conversation. It is unrealistic to expect a witness to
be a human tape-recorder.
( 5 ) In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their
estimates by guess work on the spur of the moment at the
time of interrogation. And one cannot expect people to
make very precise or reliable estimates in such matters.
Again, it depends on the time-sense of individuals which
varies from person to person.
( 6 ) Ordinarily a witness cannot be expected to recall
accurately the sequence of events which takes place in
rapid succession or in a short time span. A witness is
liable to get confused, or mixed up when interrogated
later on.
( 7 ) A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing cross-
examination made by the counsel and out of nervousness
mix up facts, get confused regarding sequence of events,
or fill up details from imagination on the spur of the
moment. The subconscious mind of the witness
sometimes so operates on account of the fear of looking
foolish or being disbelieved though the witness is giving
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a truthful and honest account of the occurrence witnessed
by him—perhaps it is a sort of a psychological defence
mechanism activated on the spur of the moment.‖
12.3. Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988
SCC (Cri) 559] : (SCC pp. 246-47, para 13)
― 13 . … The court while appreciating the evidence must not
attach undue importance to minor discrepancies. The
discrepancies which do not shake the basic version of the
prosecution case may be discarded. The discrepancies
which are due to normal errors of perception or observation
should not be given importance. The errors due to lapse of
memory may be given due allowance. The court by calling
into aid its vast experience of men and matters in different
cases must evaluate the entire material on record by
excluding the exaggerated version given by any witness.
When a doubt arises in respect of certain facts alleged by
such witness, the proper course is to ignore that fact only
unless it goes into the root of the matter so as to demolish
the entire prosecution story. The witnesses nowadays go on
adding embellishments to their version perhaps for the fear
of their testimony being rejected by the court. The courts,
however, should not disbelieve the evidence of such
witnesses altogether if they are otherwise trustworthy.
Jaganmohan Reddy, J. speaking for this Court in Sohrab v.
State of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819]
observed : [SCC p. 756, para 8 : SCC (Cri) p. 824, para 8]
‗ 8 . … This Court has held that falsus in uno, falsus in
omnibus is not a sound rule for the reason that hardly one
comes across a witness whose evidence does not contain
a grain of untruth or at any rate exaggeration,
embroideries or embellishments. In most cases, the
witnesses when asked about details venture to give some
answer, not necessarily true or relevant for fear that their
evidence may not be accepted in respect of the main
incident which they have witnessed but that is not to say
that their evidence as to the salient features of the case
after cautious scrutiny cannot be considered….‘‖
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12.4. State of Haryana v. Bhagirath [(1999) 5 SCC 96 : 1999
SCC (Cri) 658] : (SCC pp. 100-01, paras 8-11)
― 8 . It is nearly impossible in any criminal trial to prove all
the elements with a scientific precision. A criminal court
could be convinced of the guilt only beyond the range of a
reasonable doubt. Of course, the expression ‗reasonable
doubt‘ is incapable of definition. Modern thinking is in
favour of the view that proof beyond a reasonable doubt is
the same as proof which affords moral certainty to the
Judge.
9 . Francis Wharton, a celebrated writer on criminal law in
the United States has quoted from judicial pronouncements
in his book Wharton's Criminal Evidence (at p. 31, Vol. 1
of the 12th Edn.) as follows:
‗It is difficult to define the phrase ―reasonable doubt‖.
However, in all criminal cases a careful explanation of
the term ought to be given. A definition often quoted or
followed is that given by Chief Justice Shaw in the
Webster case [ Commonwealth v. Webster , 5 Cush 295 :
59 Mass 295 (1850)] . He says:―It is not mere possible
doubt, because everything relating to human affairs and
depending upon moral evidence is open to some possible
or imaginary doubt. It is that state of the case which, after
the entire comparison and consideration of all the
evidence, leaves the minds of the jurors in that
consideration that they cannot say they feel an abiding
conviction to a moral certainty of the truth of the
charge.‖‘
10 . In the treatise The Law of Criminal Evidence authored
by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th
Edn.) thus:
‗The doubt to be reasonable must be such a one as an
honest, sensible and fair-minded man might, with reason,
entertain consistent with a conscientious desire to
ascertain the truth. An honestly entertained doubt of guilt
is a reasonable doubt. A vague conjecture or an inference
of the possibility of the innocence of the accused is not a
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reasonable doubt. A reasonable doubt is one which arises
from a consideration of all the evidence in a fair and
reasonable way. There must be a candid consideration of
all the evidence and if, after this candid consideration is
had by the jurors, there remains in the minds a conviction
of the guilt of the accused, then there is no room for a
reasonable doubt.‘
11 . In Shivaji Sahabrao Bobade v. State of Maharashtra
[(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : (1974) 1 SCR
489] this Court adopted the same approach to the principle
of benefit of doubt and struck a note of caution that the
dangers of exaggerated devotion to the rule of benefit of
doubt at the expense of social defence demand special
emphasis in the contemporary context of escalating crime
and escape. This Court further said : (SCC p. 799, para 6)
‗ 6 . … The judicial instrument has a public accountability.
The cherished principles or golden thread of proof
beyond reasonable doubt which runs through the web of
our law should not be stretched morbidly to embrace
every hunch, hesitancy and degree of doubt.‘‖
12.5. Leela Ram v. State of Haryana [(1999) 9 SCC 525 : 2000
SCC (Cri) 222] : (SCC pp. 532-33, paras 9-10)
― 9 . Be it noted that the High Court is within its jurisdiction
being the first appellate court to reappraise the evidence,
but the discrepancies found in the ocular account of two
witnesses unless they are so vital, cannot affect the
credibility of the evidence of the witnesses. There are
bound to be some discrepancies between the narrations of
different witnesses when they speak on details, and unless
the contradictions are of a material dimension, the same
should not be used to jettison the evidence in its entirety.
Incidentally, corroboration of evidence with mathematical
niceties cannot be expected in criminal cases. Minor
embellishment, there may be, but variations by reason
therefor should not render the evidence of eyewitnesses
unbelievable. Trivial discrepancies ought not to obliterate
an otherwise acceptable evidence. In this context, reference
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may be made to the decision of this Court in State of U.P. v.
M.K. Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri) 105] .
In para 10 of the Report, this Court observed : (SCC pp.
514-15)
‗ 10 . While appreciating the evidence of a witness, the approach
must be whether the evidence of the witness read as a
whole appears to have a ring of truth. Once that impression
is formed, it is undoubtedly necessary for the court to
scrutinise the evidence more particularly keeping in view
the deficiencies, drawbacks and infirmities pointed out in
the evidence as a whole and evaluate them to find out
whether it is against the general tenor of the evidence given
by the witness and whether the earlier evaluation of the
evidence is shaken as to render it unworthy of belief. Minor
discrepancies on trivial matters not touching the core of the
case, hypertechnical approach by taking sentences torn out
of context here or there from the evidence, attaching
importance to some technical error committed by the
investigating officer not going to the root of the matter
would not ordinarily permit rejection of the evidence as a
whole. If the court before whom the witness gives evidence
had the opportunity to form the opinion about the general
tenor of evidence given by the witness, the appellate court
which had not this benefit will have to attach due weight to
the appreciation of evidence by the trial court and unless
there are reasons weighty and formidable it would not be
proper to reject the evidence on the ground of minor
variations or infirmities in the matter of trivial details. Even
honest and truthful witnesses may differ in some details
unrelated to the main incident because power of
observation, retention and reproduction differ with
individuals.‘
10 . In a very recent decision in Rammi v. State of M.P. [(1999)
8 SCC 649 : 2000 SCC (Cri) 26] this Court observed :
(SCC p. 656, para 24)
‗ 24 . When an eyewitness is examined at length it is quite
possible for him to make some discrepancies. No true
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witness can possibly escape from making some
discrepant details. Perhaps an untrue witness who is well
tutored can successfully make his testimony totally non-
discrepant. But courts should bear in mind that it is only
when discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that the
court is justified in jettisoning his evidence. But too
serious a view to be adopted on mere variations falling in
the narration of an incident (either as between the
evidence of two witnesses or as between two statements
of the same witness) is an unrealistic approach for
judicial scrutiny.‘
This Court further observed : (SCC pp. 656-57, paras 25-27)
‗ 25 . It is a common practice in trial courts to make out
contradictions from the previous statement of a witness
for confronting him during cross-examination. Merely
because there is inconsistency in evidence it is not
sufficient to impair the credit of the witness. No doubt
Section 155 of the Evidence Act provides scope for
impeaching the credit of a witness by proof of an
inconsistent former statement. But a reading of the
section would indicate that all inconsistent statements are
not sufficient to impeach the credit of the witness. The
material portion of the section is extracted below:
― 155. Impeaching credit of witness .—The credit of
a witness may be impeached in the following ways
by the adverse party, or, with the consent of the
court, by the party who calls him—
(1)-(2) *
(3) by proof of former statements inconsistent with
any part of his evidence which is liable to be
contradicted;‖
26 . A former statement though seemingly inconsistent
with the evidence need not necessarily be sufficient to
amount to contradiction. Only such of the inconsistent
statement which is liable to be ―contradicted‖ would
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affect the credit of the witness. Section 145 of the
Evidence Act also enables the cross-examiner to use any
former statement of the witness, but it cautions that if it is
intended to ―contradict‖ the witness the cross-examiner is
enjoined to comply with the formality prescribed therein.
Section 162 of the Code also permits the cross-examiner
to use the previous statement of the witness (recorded
under Section 161 of the Code) for the only limited
purpose i.e. to ―contradict‖ the witness.
27 . To contradict a witness, therefore, must be to
discredit the particular version of the witness. Unless the
former statement has the potency to discredit the present
statement, even if the latter is at variance with the former
to some extent it would not be helpful to contradict that
witness (vide Tahsildar Singh v. State of U.P. [AIR 1959
SC 1012 : 1959 Cri LJ 1231] )‘‖
12.6. State of H.P. v. Lekh Raj [(2000) 1 SCC 247 : 2000 SCC
(Cri) 147] : (SCC pp. 259-60, para 10)
― 10 . The High Court appears to have adopted a technical
approach in disposing of the appeal filed by the
respondents. This Court in State of Punjab v. Jagir Singh
[(1974) 3 SCC 277 : 1973 SCC (Cri) 886] held : (SCC
pp. 285-86, para 23)
‗ 23 . A criminal trial is not like a fairy tale wherein
one is free to give flight to one's imagination and
phantasy. It concerns itself with the question as to
whether the accused arraigned at the trial is guilty
of the crime with which he is charged. Crime is an
event in real life and is the product of interplay of
different human emotions. In arriving at the
conclusion about the guilt of the accused charged
with the commission of a crime, the court has to
judge the evidence by the yardstick of
probabilities, its intrinsic worth and the animus of
witnesses. Every case in the final analysis would
have to depend upon its own facts. Although the
benefit of every reasonable doubt should be given
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to the accused, the courts should not at the same
time reject evidence which is ex facie trustworthy
on grounds which are fanciful or in the nature of
conjectures.‘
The criminal trial cannot be equated with a mock scene
from a stunt film. The legal trial is conducted to ascertain
the guilt or innocence of the accused arraigned. In
arriving at a conclusion about the truth, the courts are
required to adopt a rational approach and judge the
evidence by its intrinsic worth and the animus of the
witnesses. The hypertechnicalities or figment of
imagination should not be allowed to divest the court of
its responsibility of sifting and weighing the evidence to
arrive at the conclusion regarding the existence or
otherwise of a particular circumstance keeping in view
the peculiar facts of each case, the social position of the
victim and the accused, the larger interests of the society
particularly the law and order problem and degrading
values of life inherent in the prevalent system. The
realities of life have to be kept in mind while
appreciating the evidence for arriving at the truth. The
courts are not obliged to make efforts either to give
latitude to the prosecution or loosely construe the law in
favour of the accused. The traditional dogmatic
hypertechnical approach has to be replaced by a rational,
realistic and genuine approach for administering justice
in a criminal trial. Criminal jurisprudence cannot be
considered to be a utopian thought but have to be
considered as part and parcel of the human civilisation
and the realities of life. The courts cannot ignore the
erosion in values of life which are a common feature of
the present system. Such erosions cannot be given a
bonus in favour of those who are guilty of polluting
society and mankind.‖
12.7. Gangadhar Behera v. State of Orissa [(2002) 8 SCC 381 :
2003 SCC (Cri) 32] : (SCC pp. 292-93, para 15)
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― 15 . To the same effect is the decision in State of Punjab
v. Jagir Singh [(1974) 3 SCC 277 : 1973 SCC (Cri) 886]
and Lehna v. State of Haryana [(2002) 3 SCC 76 : 2002
SCC (Cri) 526] . Stress was laid by the appellant-accused
on the non-acceptance of evidence tendered by some
witnesses to contend about desirability to throw out the
entire prosecution case. In essence prayer is to apply the
principle of falsus in uno, falsus in omnibus (false in one
thing, false in everything). This plea is clearly untenable.
Even if a major portion of the evidence is found to be
deficient, in case residue is sufficient to prove guilt of an
accused, notwithstanding acquittal of a number of other
co-accused persons, his conviction can be maintained. It
is the duty of the court to separate the grain from the
chaff. Where chaff can be separated from the grain, it
would be open to the court to convict an accused
notwithstanding the fact that evidence has been found to
be deficient to prove guilt of other accused persons.
Falsity of a particular material witness or material
particular would not ruin it from the beginning to end.
The maxim falsus in uno, falsus in omnibus has no
application in India and the witnesses cannot be branded
as liars. The maxim falsus in uno, falsus in omnibus has
not received general acceptance nor has this maxim come
to occupy the status of the rule of law. It is merely a rule
of caution. All that it amounts to, is that in such cases
testimony may be disregarded, and not that it must be
disregarded. The doctrine merely involves the question of
weight of evidence which a court may apply in a given
set of circumstances, but it is not what may be called ‗a
mandatory rule of evidence‘. (See Nisar Ali v. State of
U.P. [AIR 1957 SC 366 : 1957 Cri LJ 550] ) Merely
because some of the accused persons have been
acquitted, though evidence against all of them, so far as
direct testimony went, was the same does not lead as a
necessary corollary that those who have been convicted
must also be acquitted. It is always open to a court to
differentiate the accused who had been acquitted from
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those who were convicted. (See Gurcharan Singh v.
State of Punjab [AIR 1956 SC 460 : 1956 Cri LJ 827] .)
The doctrine is a dangerous one especially in India for if
a whole body of the testimony were to be rejected,
because a witness was evidently speaking an untruth in
some aspect, it is to be feared that administration of
criminal justice would come to a dead stop. Witnesses
just cannot help in giving embroidery to a story,
however, true in the main. Therefore, it has to be
appraised in each case as to what extent the evidence is
worthy of acceptance, and merely because in some
respects the court considers the same to be insufficient
for placing reliance on the testimony of a witness, it does
not necessarily follow as a matter of law that it must be
disregarded in all respects as well. The evidence has to be
sifted with care. The aforesaid dictum is not a sound rule
for the reason that one hardly comes across a witness
whose evidence does not contain a grain of untruth or at
any rate exaggeration, embroideries or embellishment.
(See Sohrab v. State of M.P. [(1972) 3 SCC 751 : 1972
SCC (Cri) 819] and Ugar Ahir v. State of Bihar [AIR
1965 SC 277 : (1965) 1 Cri LJ 256] .) An attempt has to
be made to, as noted above, in terms of felicitous
metaphor, separate the grain from the chaff, truth from
falsehood. Where it is not feasible to separate the truth
from falsehood, because grain and chaff are inextricably
mixed up, and in the process of separation an absolutely
new case has to be reconstructed by divorcing essential
details presented by the prosecution completely from the
context and the background against which they are made,
the only available course to be made is to discard the
evidence in toto. (See Zwinglee Ariel v. State of M.P.
[(1952) 2 SCC 560 : AIR 1954 SC 15 : 1954 Cri LJ 230]
and Balaka Singh v. State of Punjab [(1975) 4 SCC 511 :
1975 SCC (Cri) 601] .) As observed by this Court in
State of Rajasthan v. Kalki [(1981) 2 SCC 752 : 1981
SCC (Cri) 593] normal discrepancies in evidence are
those which are due to normal errors of observation,
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normal errors of memory due to lapse of time, due to
mental disposition such as shock and horror at the time of
occurrence and those are always there however honest
and truthful a witness may be. Material discrepancies are
those which are not normal, and not expected of a normal
person. Courts have to label the category to which a
discrepancy may be categorised. While normal
discrepancies do not corrode the credibility of a party's
case, material discrepancies do so. These aspects were
highlighted recently in Krishna Mochi v. State of Bihar
[(2002) 6 SCC 81 : 2002 SCC (Cri) 1220] . Accusations
have been clearly established against the appellant-
accused in the case at hand. The courts below have
categorically indicated the distinguishing features in
evidence so far as the acquitted and the convicted
accused are concerned.‖
12.8. State of Punjab v. Swaran Singh [(2005) 6 SCC 101 : 2005
SCC (Cri) 1359] : (SCC pp. 104-06, paras 10-14)
― 10 . The questioning of the accused is done to enable
him to give an opportunity to explain any circumstances
which have come out in the evidence against him. It may
be noticed that the entire evidence is recorded in his
presence and he is given full opportunity to cross-
examine each and every witness examined on the
prosecution side. He is given copies of all documents
which are sought to be relied on by the prosecution.
Apart from all these, as part of fair trial the accused is
given opportunity to give his explanation regarding the
evidence adduced by the prosecution. However, it is not
necessary that the entire prosecution evidence need be
put to him and answers elicited from the accused. If there
were circumstances in the evidence which are adverse to
the accused and his explanation would help the court in
evaluating the evidence properly, the court should bring
the same to the notice of the accused to enable him to
give any explanation or answers for such adverse
circumstance in the evidence. Generally, composite
questions shall not be asked to the accused bundling so
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many facts together. Questions must be such that any
reasonable person in the position of the accused may be
in a position to give rational explanation to the questions
as had been asked. There shall not be failure of justice on
account of an unfair trial.
11 . In State (Delhi Admn.) v. Dharampal [(2001) 10 SCC
372 : 2003 SCC (Cri) 1012] it was held as under : (SCC
pp. 376-77, para 13)
‗ 13 . Thus it is to be seen that where an omission,
to bring the attention of the accused to an
inculpatory material has occurred, that does not
ipso facto vitiate the proceedings. The accused
must show that failure of justice was occasioned
by such omission. Further, in the event of an
inculpatory material not having been put to the
accused, the appellate court can always make good
that lapse by calling upon the counsel for the
accused to show what explanation the accused has
as regards the circumstances established against
the accused but not put to him.‘
12 . In Jai Dev v. State of Punjab [AIR 1963 SC 612 :
(1963) 1 Cri LJ 495 : (1963) 3 SCR 489] it was observed
thus : (AIR p. 620, para 21 : SCR p. 510)
‗ 21 . … The ultimate test in determining whether or
not the accused has been fairly examined under
Section 342 would be to enquire whether, having
regard to all the questions put to him, he did get an
opportunity to say what he wanted to say in respect
of prosecution case against him. If it appears that
the examination of the accused person was
defective and thereby a prejudice has been caused
to him, that would no doubt be a serious infirmity.‘
13 . In Bakhshish Singh Dhaliwal v. State of Punjab [AIR
1967 SC 752 : 1967 Cri LJ 656 : (1967) 1 SCR 211] a
three-Judge Bench of this Court held that : (AIR p. 760,
para 33 : SCR p. 225 D)
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‗ 33 . … It was not at all necessary that each
separate piece of evidence in support of a
circumstance should be put to the accused and he
should be questioned in respect of it under that
section….‘
14 . In Shivaji Sahabrao Bobade v. State of Maharashtra
[(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : (1974) 1
SCR 489] a three-Judge Bench of this Court considering
the fallout of omission to put to the accused a question on
a vital circumstance appearing against him in the
prosecution evidence, widening the sweep of the
provision concerning examination of the accused after
closing prosecution evidence made the following
observations : (SCC p. 806, para 16)
‗ 16 . … It is trite law, nevertheless fundamental,
that the prisoner's attention should be drawn to
every inculpatory material so as to enable him to
explain it. This is the basic fairness of a criminal
trial and failures in this area may gravely imperil
the validity of the trial itself, if consequential
miscarriage of justice has flowed. However, where
such an omission has occurred it does not ipso
facto vitiate the proceedings and prejudice
occasioned by such defect must be established by
the accused. In the event of evidentiary material
not being put to the accused, the court must
ordinarily eschew such material from
consideration. It is also open to the appellate court
to call upon the counsel for the accused to show
what explanation the accused has as regards the
circumstances established against him but not put
to him and if the accused is unable to offer the
appellate court any plausible or reasonable
explanation of such circumstances, the court may
assume that no acceptable answer exists and that
even if the accused had been questioned at the
proper time in the trial court he would not have
been able to furnish any good ground to get out of
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the circumstances on which the trial court had
relied for its conviction.‘‖
12.9. Zahira Habibullah Sheikh (5) v. State of Gujarat [(2006) 3
SCC 374 : (2006) 2 SCC (Cri) 8] : (SCC pp. 395-97, paras 37
& 40)
― 37 . A criminal trial is a judicial examination of the
issues in the case and its purpose is to arrive at a
judgment on an issue as to a fact or relevant facts which
may lead to the discovery of the fact in issue and obtain
proof of such facts at which the prosecution and the
accused have arrived by their pleadings; the controlling
question being the guilt or innocence of the accused.
Since the object is to mete out justice and to convict the
guilty and protect the innocent, the trial should be a
search for the truth and not a bout over technicalities, and
must be conducted under such rules as will protect the
innocent, and punish the guilty. The proof of charge
which has to be beyond reasonable doubt must depend
upon judicial evaluation of the totality of the evidence,
oral and circumstantial, and not by an isolated scrutiny.
*
40 . … Consequences of defective investigation have
been elaborated in Dhanaj Singh v. State of Punjab
[(2004) 3 SCC 654 : 2004 SCC (Cri) 851] . It was
observed as follows : (SCC p. 657, paras 5-7)
‗ 5 . In the case of a defective investigation the court
has to be circumspect in evaluating the evidence.
But it would not be right in acquitting an accused
person solely on account of the defect; to do so
would tantamount to playing into the hands of the
investigating officer if the investigation is
designedly defective. (See Karnel Singh v. State of
M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977] )
6 . In Paras Yadav v. State of Bihar [(1999) 2 SCC
126 : 1999 SCC (Cri) 104] it was held that if the
lapse or omission is committed by the
investigating agency or because of negligence the
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prosecution evidence is required to be examined
dehors such omissions to find out whether the said
evidence is reliable or not, the contaminated
conduct of officials should not stand in the way of
evaluating the evidence by the courts; otherwise
the designed mischief would be perpetuated and
justice would be denied to the complainant party.
7 . As was observed in Ram Bihari Yadav v. State
of Bihar [(1998) 4 SCC 517 : 1998 SCC (Cri)
1085] if primacy is given to such designed or
negligent investigation, to the omission or lapses
by perfunctory investigation or omissions, the faith
and confidence of the people would be shaken not
only in the law-enforcing agency but also in the
administration of justice. The view was again
reiterated in Amar Singh v. Balwinder Singh
[(2003) 2 SCC 518 : 2003 SCC (Cri) 641] .‘‖
12.10. Main Pal v. State of Haryana [(2004) 10 SCC 692 : 2004
SCC (Cri) 1882] : (SCC pp. 698-99, para 12)
― 12 . There is no embargo on the appellate court
reviewing the evidence upon which an order of acquittal
is based. As a matter of fact, in an appeal against
acquittal, the High Court as the court of first appeal is
obligated to go into greater detail of the evidence to see
whether any miscarriage has resulted from the order of
acquittal, though it has to act with great circumspection
and utmost care before ordering the reversal of an
acquittal. Generally, the order of acquittal shall not be
interfered with because the presumption of innocence of
the accused is further strengthened by acquittal. The
golden thread which runs through the web of
administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case,
one pointing to the guilt of the accused and the other to
his innocence, the view which is favourable to the
accused should be adopted. The paramount consideration
of the court is to ensure that miscarriage of justice is
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prevented. A miscarriage of justice which may arise from
acquittal of the guilty is no less than from the conviction
of an innocent. In a case where admissible evidence is
ignored, a duty is cast upon the appellate court to
reappreciate the evidence where the accused has been
acquitted, for the purpose of ascertaining as to whether
any of the accused really committed any offence or not.
(See Bhagwan Singh v. State of M.P. [(2002) 4 SCC 85 :
2002 SCC (Cri) 736] ) The principle to be followed by
the appellate court considering the appeal against the
judgment of acquittal is to interfere only when there are
compelling and substantial reasons for doing so. If the
impugned judgment is clearly unreasonable and relevant
and convincing materials have been unjustifiably
eliminated in the process, it is a compelling reason for
interference. This position has been recently reiterated in
Joseph v. State of Kerala [(2003) 1 SCC 465 : 2003 SCC
(Cri) 356] , Devatha Venkataswamy v. Public Prosecutor
[(2003) 10 SCC 700 : 2004 SCC (Cri) 963] , State of
Punjab v. Phola Singh [(2003) 11 SCC 58 : 2004 SCC
(Cri) 276] , State of Punjab v. Karnail Singh [(2003) 11
SCC 271 : 2004 SCC (Cri) 135] , State of U.P. v. Babu
[(2003) 11 SCC 280 : 2004 SCC (Cri) 144] and Suchand
Pal v. Phani Pal [(2003) 11 SCC 527 : 2004 SCC (Cri)
220] .‖
12.11. State of Rajasthan v. Jaggu Ram [(2008) 12 SCC 51 :
(2009) 1 SCC (Cri) 317] : (SCC pp. 60-62, paras 27-29)
― 27 . In our considered view, this was a fit case for
invoking Section 106 of the Evidence Act, which lays
down that when any fact is especially within the
knowledge of any person, the burden of proving that fact
is upon him. In Ram Gulam Chaudhary v. State of Bihar
[(2001) 8 SCC 311 : 2001 SCC (Cri) 1546] this Court
considered the applicability of Section 106 of the
Evidence Act in a case somewhat similar to the present
one. This Court noted that the accused after brutally
assaulting a boy carried him away and thereafter the boy
was not seen alive nor his body was found. The accused,
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however, offered no explanation as to what they did after
they took away the boy. It was held that for the absence
of any explanation from the side of the accused about the
boy, there was every justification for drawing an
inference that they had murdered the boy. It was further
observed that even though Section 106 of the Evidence
Act may not be intended to relieve the prosecution of its
burden to prove the guilt of the accused beyond
reasonable doubt, but the section would apply to cases
like the present, where the prosecution has succeeded in
proving facts from which a reasonable inference can be
drawn regarding death. The accused by virtue of their
special knowledge must offer an explanation which
might lead the court to draw a different inference.
28 . In Trimukh Maroti Kirkan v. State of Maharashtra
[(2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] a two-
Judge Bench of which one of us (G.P. Mathur, J.) was a
member, considered the applicability of Section 106 of
the Evidence Act and observed : (SCC pp. 689-91, paras
13-15)
‗ 13 . The demand for dowry or money from the
parents of the bride has shown a phenomenal
increase in the last few years. Cases are frequently
coming before the courts, where the husband or in-
laws have gone to the extent of killing the bride if
the demand is not met. These crimes are generally
committed in complete secrecy inside the house
and it becomes very difficult for the prosecution to
lead evidence. No member of the family, even if
he is a witness of the crime, would come forward
to depose against another family member. The
neighbours, whose evidence may be of some
assistance, are generally reluctant to depose in
court as they want to keep aloof and do not want to
antagonise a neighbourhood family. The parents or
other family members of the bride being away
from the scene of commission of crime are not in a
position to give direct evidence which may
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inculpate the real accused except regarding the
demand of money or dowry and harassment caused
to the bride. But, it does not mean that a crime
committed in secrecy or inside the houses should
go unpunished.
14 . If an offence takes place inside the privacy of a
house and in such circumstances where the
assailants have all the opportunity to plan and
commit the offence at the time and in
circumstances of their choice, it will be extremely
difficult for the prosecution to lead evidence to
establish the guilt of the accused if the strict
principle of circumstantial evidence, as noticed
above, is insisted upon by the courts. A Judge does
not preside over a criminal trial merely to see that
no innocent man is punished. A Judge also
presides to see that a guilty man does not escape.
Both are public duties. (See Stirland v. Director of
Public Prosecutions [1944 AC 315 : (1944) 2 All
ER 13 (HL)] —quoted with approval by Arijit
Pasayat, J. in State of Punjab v. Karnail Singh
[(2003) 11 SCC 271 : 2004 SCC (Cri) 135] .) The
law does not enjoin a duty on the prosecution to
lead evidence of such character which is almost
impossible to be led or at any rate extremely
difficult to be led. The duty on the prosecution is
to lead such evidence which it is capable of
leading, having regard to the facts and
circumstances of the case. Here it is necessary to
keep in mind Section 106 of the Evidence Act
which says that when any fact is especially within
the knowledge of any person, the burden of
proving that fact is upon him. Illustration ( b )
appended to this section throws some light on the
content and scope of this provision and it reads:
―( b ) A is charged with travelling on a railway
without ticket. The burden of proving that he had a
ticket is on him.‖
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15 . Where an offence like murder is committed in
secrecy inside a house, the initial burden to
establish the case would undoubtedly be upon the
prosecution, but the nature and amount of evidence
to be led by it to establish the charge cannot be of
the same degree as is required in other cases of
circumstantial evidence. The burden would be of a
comparatively lighter character. In view of Section
106 of the Evidence Act there will be a
corresponding burden on the inmates of the house
to give a cogent explanation as to how the crime
was committed. The inmates of the house cannot
get away by simply keeping quiet and offering no
explanation on the supposed premise that the
burden to establish its case lies entirely upon the
prosecution and there is no duty at all on an
accused to offer any explanation.‘
Similar view has been expressed in State of Punjab v.
Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri)
135] , State of Rajasthan v. Kashi Ram [(2006) 12 SCC
254 : (2007) 1 SCC (Cri) 688] and Raj Kumar Prasad
Tamarkar v. State of Bihar [(2007) 10 SCC 433 : (2007)
3 SCC (Cri) 716] .
29 . We are sure, if the learned Single Judge of the High
Court had adverted to Section 106 of the Evidence Act
and correctly applied the principles of law, he would not
have committed the grave error of acquitting the
respondent.‖
64. Therefore, in the considered opinion of this Court, the contention
made by counsel for appellant that if A (PW-1) had already narrated the
factum of taking away of the victim by the appellant prior to lodging of
Dehati Nalishi (Ex.P/5) then the same should have been mentioned in the
Dehati Nalishi, cannot be accepted. We can understand the mental
condition of the parents and relatives of the victim after recovering the
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dead body in a semi-naked condition with multiple injuries on the body.
Therefore, it was not expected from the witnesses to keep their mental
calm and start looking for the accused instead of mourning the death of
their minor daughter, who was apparently subjected to rape in a brutal
manner. Therefore, minute-to-minute details are not expected from natural
witnesses.
65. Under these circumstances, it is held that A (PW-1) must have
narrated the incident to her mother, mother, father and other relatives of
the victim after the Dehati Nalishi was lodged, and that is how the
absence of such fact has been plausibly explained by the prosecution and
the evidence of 'A' (PW-1), father of the deceased ‗B‘ (PW-2), Mausi of
the deceased ‗C‘ (PW-3), Tau of the deceased ‗D‘ (PW-4), mother of the
deceased ‗E‘ (PW-5), Mausa of the deceased ‗F‘ (PW-6) cannot be said to
be unreliable. F (PW-6), who is father of A(PW-1) has specifically stated
that A (PW-1) had informed them at about 11 AM. C (PW-3), who is the
mother of A (PW-1), has stated that she was informed by A (PW-1) at
about 10 AM. Thus, it is clear that although there is a minor discrepancy
with regard to the time at which A (PW-1) had narrated the incident to the
family members, but it is clear from the evidence of A (PW-1) that she did
not go along with the other relatives to search for the missing victim and
only when everybody came back along with dead body of victim, the
incident was narrated by A (PW-1). It is a well-established principle of
law that the entire evidence of a witness must be read, and picking up a
stray sentence and giving undue importance to it should always be
avoided. A (PW-1) is a minor girl, aged about 11 years. After the recovery
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of dead body of victim from which it was clearly visible that the victim
was subjected to rape and killed in a brutal manner, the mental status of
A(PW-1) as well as other relatives of victim including her parents (PW2
and PW5) can be understood. The things must have gone beyond the stage
of normalcy to grief and annoyance. Under these circumstances, making
an attempt to find out as to whether the incident was narrated by A (PW-
1) to her parents as well as the parents of the victim prior to lodging of
Dehati Nalishi or immediately thereafter, would be nothing but an attempt
to look into evidence of witness with a preconceived notion that such
witness is a vulnerable witness and prone to tutoring. As already pointed
out by Supreme Court in the case of Balveer Singh (Supra) , the only
precaution which the Court should take while assessing the evidence of a
child witness is that such witness must be reliable one, due to
susceptibility of children to falling prey to tutoring, but this in no manner
means that the evidence of a child must be rejected outrightly at the
slightest discrepancy, rather, what is required is that the same is evaluated
with great circumspection.
66. Under these circumstances, this Court is of considered opinion, that
the statement of A (PW-1) that she had seen the accused/appellant taking
away the victim in his lap in the night of 8/5/2022, is reliable.
67. Now the next question for consideration shall be as to whether the
evidence of last seen together establishes the guilt of the
accused/appellant beyond reasonable doubt ?
68. From the judgments passed by Supreme Court in the cases of
Digamber Vaishnav (Supra), Nizam (Supra), Satish (Supra) and
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Ashok (Supra), it is clear that in order to treat the circumstance of last
seen together as an incriminating circumstance against the appellant, not
only prosecution has to prove close proximity between the time of last
seen together and recovery of the body, duration of death, no possibility
of deceased suffering a homicidal death in any other manner not involving
the accused, but under certain circumstances the Court should also look
for surrounding circumstances which may give credence to the evidence
of last seen together.
69. The Supreme Court in the case of Rajender v. State (NCT of
Delhi ), reported in (2019) 10 SCC 623 has held as under:-
12.2.5. Notably, a circumstance of last seen does not, by itself,
necessarily lead to an inference that the accused committed the
crime. There must be something more that establishes a
connection between the accused and the crime. For instance,
there may be cases where close proximity between the event of
last seen and the factum of death may persuade a rational mind
to reach the irresistible conclusion that the last seen of the
deceased is material and merits an explanation from the
accused.
12.2.6. In the instant case, there is proximity between the time
of last seen of the deceased with Sharda Jain and the time of his
death. As mentioned supra, it is proved that the deceased was
last seen with Sharda Jain on 24-8-2002. It has also been shown
that the deceased expired on 24-8-2002, as indicated in the
testimony of Dr S.K. Aggarwal (PW 21) who conducted the
post-mortem examination of the deceased at 2.30 p.m. on 31-8-
2002. He has deposed that the probable date of death of the
deceased was about a week prior to the post-mortem
examination i.e. on 24-8-2002. Thus, the proximity between the
time of last seen and the time of death of the deceased is
established. This, in turn, connects the accused to the crime in
question.
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70. In the present case, A (PW-1) had seen appellant taking away the
victim at about 12 in the night, and the dead body of victim was recovered
in the first half of next day i.e. on 9/5/2022 i.e. within 10-11 hours of last
seen together. As per the postmortem report (Ex.P/20), the time since
death was found to be within one day. The post mortem was conducted on
9/5/2022 at 5.10 pm. From the postmortem report (Ex.P/20) as well as
from the query report (Ex.P/21), it is clear that the injuries over neck of
the victim were due to asphyxia and were homicidal in nature, and injuries
over the private parts of the victim, as mentioned in the postmortem
report, are possible to be caused by sexual assault/penetration. The
injuries over the neck of the deceased/victim, which resulted in death due
to asphyxia, are possible to be caused by throttling. Therefore, there is a
close proximity between the time of last seen together and the time of
death, as well as the recovery of the dead body.
71. It is also not out of place to mention here that this case is not based
solely on the evidence of last seen together, but it is also based on the
recovery of incriminating articles of the deceased from the possession of
the appellant, the presence of the DNA profile of the victim on the clothes
of the appellant, and the presence of the DNA profile of the appellant in
the nail clippings of the victim as well as her clothes, which also establish
the guilt of appellant beyond reasonable doubt that it was the appellant,
and the appellant only, who had committed rape on the victim and
thereafter killed by strangulating her.
72. Thus, it is held that the prosecution has established the
circumstance of last seen together leading to a conclusive conclusion
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regarding the guilt of accused/appellant in committing rape and murder.
Accordingly, the conviction of the appellant for offences under Sections
363, 366, 376AB, 376A and 302 of the IPC and 5(m)/6 of the POCSO
Act,2012 is hereby confirmed.
73. The trial Court has awarded capital sentence for offences under
Section 376A and Section 302 of the IPC, and under section 5(m)/6 of the
POCSO Act, 2012 along with fine of Rs.5000/- with default sentence of 6
months‘ RI for each offence, as well as, RI for 3 years with fine of
Rs.1000/- with default sentence of 1 month‘s RI for offence under section
363 of IPC and seven years‘ RI with fine of Rs.2000/- with default
sentence of 6 months‘ RI for offence under section 366 of IPC.
74. Now the moot question for consideration is death penalty awarded
by the trial Court should be affirmed or not ?
75. The Supreme Court in the case of Aman Singh (Supra) has held
as under:-
―13. In wake of the above discussion and the concerns noted in
the preceding paras particularly in relation to the ineffective
consideration of mitigating and aggravating circumstances and
the need to ensure meaningful legal representation in cases
involving a potential death sentence, the following directions
are being issued: -
A. The report pertaining to aggravating and mitigating
circumstances shall, as a matter of course, be called for by the
trial Court itself once the accused is convicted, prior to the
determination of sentence.
B. In the event such a report has not been called for or placed
on record before the trial Court, the High Court shall
mandatorily call for the same at the stage of admission of the
death reference.
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C. The concerned authorities shall ensure that such reports are
comprehensive, duly verified, and furnished within a stipulated
timeframe so as to avoid any delay in the adjudicatory process,
and to aid and enable the Courts to undertake a meaningful,
informed, and constitutionally compliant sentencing exercise.
Upon receipt of such report, the Court concerned shall afford
adequate opportunity to the parties to peruse the same and to
advance oral submissions thereon. In cases where the reports
procured by the trial Court are found to be ineffective or
lacking in proper details, the High Court would be at liberty to
call for a fresh report.
D. In every death sentence confirmation reference brought
before the High Courts and this Court, the Legal Services
Committee concerned shall assign a dedicated legal team
comprising one Senior Counsel and at least two advocates
having a minimum of 7 years practice, to represent the
convicted person. Such representation shall be provided
irrespective of whether the convict has engaged private counsel,
so as to ensure full and effective assistance to the Court in
matters involving death penalty, which necessitate a careful
balancing of the interests of justice, societal concerns, and the
possibility of reformation and rehabilitation. The appointed
legal team shall be furnished with the complete case records
and afforded adequate time to prepare, conduct research, and
present a comprehensive assessment of mitigating
circumstances. The legal aid team so appointed shall work in
cohesion with the representing private counsel, if any.
E. Each High Court, under the aegis of the High Court Legal
Services Committee, shall constitute and maintain a dedicated
panel of advocates for handling death reference matters.
F. The National Legal Services Authority shall frame and
circulate appropriate guidelines identifying the relevant fields
of enquiry for gathering mitigating circumstances and may
engage trained teams, including legal and social science
professionals, to undertake fieldwork involving interaction with
the convict, their family, and relevant authorities, for the
purpose of collecting detailed information regarding
background, antecedents, socio-economic conditions, mental
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health status, and other relevant factors. Such information shall
be made available to the appointed legal team, which shall, in
turn, place before the Court a holistic and well-documented
account of the convict‘s potential for reformation along with all
pertinent mitigating and aggravating circumstances to assist in a
just and informed determination of sentence.‖


76. The Supreme Court in the case of Bhagwani v. State of M.P .
reported in (2022) 13 SCC 365 has held as under:-
21. After considering the judgments of this Court in Bachan
Singh v. State of Punjab [ Bachan Singh v. State of Punjab ,
(1980) 2 SCC 684 : 1980 SCC (Cri) 580] , Machhi Singh v.
State of Punjab [ Machhi Singh v. State of Punjab , (1983) 3
SCC 470 : 1983 SCC (Cri) 681] , this Court in Mohd. Mannan
v. State of Bihar [ Mohd. Mannan v. State of Bihar , (2019) 16
SCC 584 : (2020) 2 SCC (Cri) 382] observed as follows :
( Mohd. Mannan case [ Mohd. Mannan v. State of Bihar , (2019)
16 SCC 584 : (2020) 2 SCC (Cri) 382] , SCC p. 607, para 72)
― 72 . The proposition of law which emerges from the
judgments referred to above is that death sentence cannot
be imposed except in the rarest of rare cases, for which
special reasons have to be recorded, as mandated in
Section 354(3) of the Criminal Procedure Code. In
deciding whether a case falls within the category of the
rarest of rare, the brutality, and/or the gruesome and/or
heinous nature of the crime is not the sole criterion. It is
not just the crime which the Court is to take into
consideration, but also the criminal, the state of his mind,
his socio-economic background, etc. Awarding death
sentence is an exception, and life imprisonment is the
rule.‖
22. In Mofil Khan v. State of Jharkhand [ Mofil Khan v. State of
Jharkhand , (2021) 20 SCC 162 : 2021 SCC OnLine SC 1136] ,
this Court observed as follows : (SCC para 14)
― 14. One of the mitigating circumstances is the
probability of the accused being reformed and
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rehabilitated. The State is under a duty to procure
evidence to establish that there is no possibility of
reformation and rehabilitation of the accused. Death
sentence ought not to be imposed, save in the rarest of
the rare cases when the alternative option of a lesser
punishment is unquestionably foreclosed (see Bachan
Singh v. State of Punjab [ Bachan Singh v. State of
Punjab , (1980) 2 SCC 684 : 1980 SCC (Cri) 580] ). To
satisfy that the sentencing aim of reformation is
unachievable, rendering life imprisonment completely
futile, the Court will have to highlight clear evidence as
to why the convict is not fit for any kind of reformatory
and rehabilitation scheme. This analysis can only be done
with rigour when the Court focuses on the circumstances
relating to the criminal, along with other circumstances
(see Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra [ Santosh Kumar Satishbhushan Bariyar v.
State of Maharashtra , (2009) 6 SCC 498 : (2009) 2 SCC
(Cri) 1150] ). In Rajendra Pralhadrao Wasnik v. State of
Maharashtra [ Rajendra Pralhadrao Wasnik v. State of
Maharashtra , (2019) 12 SCC 460 : (2019) 4 SCC (Cri)
420] , this Court dealt with the review of a judgment
[ Rajendra Pralhadrao Wasnik v. State of Maharashtra ,
(2012) 4 SCC 37 : (2012) 2 SCC (Cri) 30] of this Court
confirming death sentence and observed as under :
( Rajendra Pralhadrao Wasnik case [ Rajendra
Pralhadrao Wasnik v. State of Maharashtra , (2019) 12
SCC 460 : (2019) 4 SCC (Cri) 420] , SCC p. 483, para
45)
‗ 45 . The law laid down by various decisions of this Court
clearly and unequivocally mandates that the probability
(not possibility or improbability or impossibility) that a
convict can be reformed and rehabilitated in society must
be seriously and earnestly considered by the courts
before awarding the death sentence. This is one of the
mandates of the ―special reasons‖ requirement of Section
354(3)CrPC and ought not to be taken lightly since it
involves snuffing out the life of a person. To effectuate
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this mandate, it is the obligation on the prosecution to
prove to the court, through evidence, that the probability
is that the convict cannot be reformed or rehabilitated.
This can be achieved by bringing on record, inter alia,
material about his conduct in jail, his conduct outside jail
if he has been on bail for some time, medical evidence
about his mental make-up, contact with his family and so
on. Similarly, the convict can produce evidence on these
issues as well.‘ ‖
23. A perusal of the judgments of the trial court and the High
Court would disclose that the gravity of the crime was taken
into consideration while imposing death sentence. The
mitigating circumstances and the probability of reformation and
rehabilitation of the accused have not been considered. It is
relevant to refer to the following observations of this Court in
Rajendra Pralhadrao Wasnik v. State of Maharashtra
[ Rajendra Pralhadrao Wasnik v. State of Maharashtra , (2019)
12 SCC 460 : (2019) 4 SCC (Cri) 420] : (SCC pp. 483-84, para
47)
― 47 . Consideration of the reformation, rehabilitation and
reintegration of the convict into society cannot be
overemphasised. Until Bachan Singh [ Bachan Singh v.
State of Punjab , (1980) 2 SCC 684 : 1980 SCC (Cri)
580] , the emphasis given by the courts was primarily on
the nature of the crime, its brutality and severity. Bachan
Singh [ Bachan Singh v. State of Punjab , (1980) 2 SCC
684 : 1980 SCC (Cri) 580] placed the sentencing process
into perspective and introduced the necessity of
considering the reformation or rehabilitation of the
convict. Despite the view expressed by the Constitution
Bench, there have been several instances, some of which
have been pointed out in Bariyar [ Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra , (2009) 6
SCC 498 : (2009) 2 SCC (Cri) 1150] and in Sangeet v.
State of Haryana [ Sangeet v. State of Haryana , (2013) 2
SCC 452 : (2013) 2 SCC (Cri) 611] where there is a
tendency to give primacy to the crime and consider the
criminal in a somewhat secondary manner. As observed
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in Sangeet [ Sangeet v. State of Haryana , (2013) 2 SCC
452 : (2013) 2 SCC (Cri) 611] ―In the sentencing process,
both the crime and the criminal are equally important.‖
Therefore, we should not forget that the criminal,
however ruthless he might be, is nevertheless a human
being and is entitled to a life of dignity notwithstanding
his crime. Therefore, it is for the prosecution and the
courts to determine whether such a person,
notwithstanding his crime, can be reformed and
rehabilitated. To obtain and analyse this information is
certainly not an easy task but must nevertheless be
undertaken. The process of rehabilitation is also not a
simple one since it involves social reintegration of the
convict into society. Of course, notwithstanding any
information made available and its analysis by experts
coupled with the evidence on record, there could be
instances where the social reintegration of the convict
may not be possible. If that should happen, the option of
a long duration of imprisonment is permissible.‖
24. The appellant was aged 25 years on the date of commission
of the offence and belongs to a Scheduled Tribe community,
eking his livelihood by doing manual labour. No evidence has
been placed by the prosecution on record to show that there is
no probability of rehabilitation and reformation of the appellant
and the question of an alternative option to death sentence is
foreclosed. The appellant had no criminal antecedents before
the commission of crime for which he has been convicted.
There is nothing adverse that has been reported against his
conduct in jail. Therefore, the death sentence requires to be
commuted to life imprisonment. However, taking into account
the barbaric and savage manner in which the offences of rape
and murder were committed by the appellant on a hapless 11-
year-old girl, the appellant is sentenced to life imprisonment for
a period of 30 years during which he shall not be granted
remission.
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In this case, the accused was alleged to have committed rape and murder
of a minor girl. The trial Court and the High Court had awarded death
sentence after considering the gravity of the offence. However, the
Supreme Court, in absence of any evidence to show that there is no
probability of rehabilitation and reformation of the accused and the option
of an alternative option to death sentence is foreclosed and in view of the
fact that there is nothing adverse that has been reported against his
conduct in jail, modified the death sentence to life imprisonment for a
period of 30 years during which he shall not be granted remission.
77. The Supreme Court in the case of Union Of India vs V. Sriharan
@ ,Murugan & Ors reported in (2016)7 SCC 1 has held that in the
present distressed and disturbed atmosphere we feel that if deterrent
punishment is not resorted to, there will be complete chaos in the entire
country and criminals will be let loose endangering the lives of
thousands of innocent people of our country. In spite of all the resources
at its hands, it will be difficult for the State to protect or guarantee the
life and liberty of all the citizens, if criminals are let loose and deterrent
punishment is either abolished or mitigated. Secondly, while
reformation of the criminal is only one side of the picture, rehabilitation
of the victims and granting relief from the tortures and sufferings
which are caused to them as a result of the offences committed by
the criminals is a factor which seems to have been completely
overlooked while defending the cause of the criminals for abolishing
deterrent sentences. Where one person commits three murders it is
illogical to plead for the criminal and to argue that his life should be
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NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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spared, without at all considering what has happened to the victims and
their family. A person who has deprived another person completely of
his liberty forever and has endangered the liberty of his family has no
right to ask the Court to uphold his liberty. While considering the problem
of penology we should not overlook the plight of victimology and the
sufferings of the people who die, suffer or are maimed at the hands of
criminals. However, in death sentence cases, if one were to judge the
matter from the standpoint of the victim's side, it can be said without any
hesitation that one would have unhesitatingly imposed the death
sentence. That may be called as the human reaction of anyone who
is affected by the conduct of the convict of such a ghastly crime. That
may even be called as the reaction or reflection in the common man‘s
point of view. But in an organized society where the Rule of Law
prevails, for every conduct of a human being, right or wrong, there is
a well set methodology followed based on time tested, well thought out
principles of law either to reward or punish anyone which was
crystallized from time immemorial by taking into account very many
factors, such as the person concerned, his or her past conduct, the
background in which one was brought up, the educational and knowledge
base, the surroundings in which one was brought up, the societal
background, the wherewithal, the circumstances that prevailed at the
time when any act was committed or carried out whether there was
any preplan prevalent, whether it was an individual action or personal
action or happened at the instance of anybody else or such action
happened to occur unknowingly, so on so forth. It is for this reason, we
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find that the criminal law jurisprudence was developed by setting
forth very many ingredients while describing the various crimes, and by
providing different kinds of punishment and even relating to such
punishment different degrees, in order to ensure that the crimes alleged
are befitting the nature and extent of commission of such crimes and
the punishments to be imposed meets with the requirement or the gravity
of the crime committed.
78. The report pertaining to aggravating and mitigating circumstances
reads as under:-

भृत्मु दण्डित फॊदी छत्रऩार ऩुत्र यणवीय यावत के सॊफॊध भें ऩरयवीक्षा

अधधकायी टववेिन अधधकायी कअ रयऩवोप्र /
---00---
भृत्मु दण्डित फॊदी छत्रऩार यावत ऩुत्र यणवीय यावत से व्मक्तिगत
साक्षात्काय एवॊ जेर अधबरेखों के ऩयीक्षण उऩयाॊत फॊदी के सॊफॊध भें धनम्न

तथ्म टकाि भें आमे:-
केन्द्रीम जेर ग्वाधरमय भें धनरूद्ध भृत्मु दण्डित फॊदी छत्रऩार ऩुत्र यणवीय
32 , , ,
यावत उम्र रगबग - वर्प्र धनवासी फाॊसगब - थाना कयैया - ण्जरा यी धिवऩु -
15/2022 363, 366, 376 , 302
- एससी .- का सवकय केस नॊ भें धाया क बादक्तव
5( 6
ि/) ऩवक्सव एक्ो भें भाननीम न्द्मामारम क्तविेर् न्द्मामाधीि ऩवक्सव एक्ो
21-07-2026 03 , 07 , ,
दधतमा काया ददनाॊक ). ट . भ ( कव वर्प्र वर्प्र भृत्मु दडि भृत्मु
, 1000, 2000, 5000, 5000, 5000/-
दडि भृत्मु दडि एवॊ अथप्र दडि रूऩमे न
01 , 06 , 06 , 06
देने ऩय भास भास भास भास के कदिन कायावास से दण्डित

दकमा गमा सै।
1. 06-09-2026
फॊदी से ददनाॊक कव दकमे गमे व्मक्तिगत साक्षात्काय भें
टायॊधबक ऩारयवारयक ऩृष्ठबूधभ के फाये भें ऩूछे जाने ऩय फॊदी काया फतामा
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NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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, ,
गमा दक उसका जन्द्भ ग्राभ फाॊसगब - थाना कयैया - ण्जरा धिवऩुयी भें -
,
जिवदा - ग्राभीण ऩरयवेि भें सुआ सै उसके ऩरयवाय भें भाॉ फडा बाई-
, ,
गजेन्द्र फडी फसन भसादेवी सै बाई एवॊ फसन कअ िादी सव ीुकअ सै - फॊदी
,
काया फतामा गमा सै दक उसकअ िादी सव गई सै दकन्द्तु अऩयाध सवने के फाद
08
तराक सव गमा सै। गाॉव भें रगबग- फीघा जभीन सै ण्जसकव भेया बाई
जवत यसा सै भाॉ बी उसी के साथ यसती सै जव ीरने दपयने भें असभथप्र सर। -
,
ऩरयवाय का खीप्र ीरता सै - कभाई से घय जभीन कअ जभीनी क्तववाद के
ीरते उि अऩयाध कारयत सव गमा था। इसके ऩूवप्र कबी बी उसके क्तवरुद्ध
,
कवई अऩयाध ऩॊजीफक नसीॊ सुआ सै गाॉव भें रडाई झगडा बी नसीॊ सुआ -
िाण्न्द्त ऩूवप्रक ऩूया ऩरयवाय जीवन माऩन कयता था। क्तऩता का देसाॊत फीऩन -

था। भें सी सव गमा
2.
फॊदी काया साक्षात्काय भें अऩनी िैक्षण्णक ण्थथधत के फाये भें फतामा सै दक
5
वस वीॊ तक गाॉव भें सी ऩबा सुआ सै। ऩरयवाय कअ ण्थथधत िीक न सवने के
, 08
कायण आगे कअ ऩबाई नसीॊ कअ उसका बाई वीॊ तक ऩबा सुआ सै तथा
,
दकसानी कयता सै भाॉ ऩबी धरखी नसीॊ सै। -
3.
फॊदी काया व्मक्तिगत साक्षात्काय भें साभाण्जक धाधभप्रक ऩृष्ठबूधभ के फाये भें
,
फतामा सै दक उसका ऩरयवाय धाधभप्रक ऩृष्ठबूधभ वारा सै उसका ऩरयवाय
,
याधाकृष्ण कअ ऩूजा कयता सै। ग्राभ भें सी आमवण्जत धाधभप्रक साभाण्जक
, ,
कामप्रक्रभ जैसे जन्द्भामभी - दीऩावरी दिसया इत्मादद त्मौसायों भें सण्म्भधरत

सवता सै व टधतददन ऩूजा ऩाि कयता सै। -
4.
फॊदी काया फतामा गमा दक उसका ऩरयवाय खेती कयके जीवन माऩन कयता -
सै गयीफ ऩरयवाय से सॊफॊधधत सै गाॉव भें एक क ीा भकान सै ण्जसभें

ऩरयवाय धनवास कयता सै।
5.
फॊदी छत्रऩार काया फतामा गमा दक उसके ऩरयवाय भें दकसी बी सदथम ने
,
ऩूवप्र भें कबी कवई अऩयाध कारयत नसीॊ दकमा जभीनी क्तववाद के ीरते
,
उसके ऊऩय उि अऩयाध ऩॊजीकृत सव गमा था जव दक झूिा सै।
6.
वायॊो ोीऩ अनुसाय घोना का सॊण्क्षप्त क्तववयण इस टकाय सै दक फॊदी ने
09-05-2022 01:30
ददनाॊक कव कयीफ फजे अवमथक ऩीदडता कव उसके
भाता कअ क्तवधधऩूणप्र सॊयक्षकता भें से रे जाकय उसका व्मऩसयण दकमा क्तऩता -
12
आमुि सॊबवग कयने के आिम से ऩीदडता का व्मऩसयण वर्प्र से कभ
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आमु कअ ऩीदडता के साथ फरात्सॊग कय उसे ऐसी क्षधत कारयत कअ ण्जस
,
कायण उसकअ भृत्मु सव गई फाधरका कअ भृत्मु कारयत कयने के आिम से
गरा दफाकय उसकअ सािम भृत्मु कारयत कय सत्मा का अऩयाध दकमा एवॊ
12
वर्प्र से कभ आमु कअ फाधरका के साथ गुरुत्तय टवेिन रधगक सभरा
,
कारयत दकमा
ण्जसके धरए उसे दवर्ी भानते सुए भाननीम न्द्मामारम काया

भृत्मुदडि कअ सजा से दण्डित दकमा गमा सै।
7.
फॊदी काया व् मक्तिगत साक्षातकाय भें फतामा गमा दक वस 5वी तक ग ॊव भें
सी ऩढा धरखा सै । जेर भें याधायानी के भॊददय ऩय ऩूजा ऩाि कयता सै
अन्द् म कवई कामप्र नसीॊ कयता । जेर ऩय उसकअ भुराकात के धरमे उसकअ
भाॊ एवॊ बाइ आते सर । फॊदी घदोत अऩयाध के फाद 2022 से जेर भें सी
ऩरयरूक सै तफ से जेर भें सी वस अनुिासन भें यसता सै उसे जेर भें दकसी
बी टकाय का दॊि नसीॊ ददमा गमा सै धनमधभत रूऩ से ऩूजा ऩाि व ईश्वय
कअ आयाधना कयता सै। वस टधतददन ईश्वय से अऩने जीवन कअ भाॊग कयता
,
सै ण्जससे वस जेर से छूोने के उऩयाॊत अ छे कभप्र कय सके। अऩने ऩरयवाय
के साथ जीवन माऩन कय सके इसधरए उसे सजा से भापअ ददमे जाने कअ

आिा व उम्भीद यसती सै। वस ईश्वय कअ आयाधना भें रीन यसता सै।

धनष्कर्प्र:- फॊदी से दकमे गमे व्मक्तिगत साक्षात्काय एवॊ जेर अधबरेखों के
अवरवकन के अनुसाय फॊदी छत्रऩार ऩुत्र यणवीय यावत ग्राभीण ऩृष्ठबूधभ
ऩरयवाय से सॊफॊधधत सै एवॊ गयीफ ऩरयवाय से सॊफॊध यखता सै उसका जन्द्भ
ग्राभीण ऩरयवेि भें सुआ सै फॊदी के ऩरयवाय भें वृद्ध भाॉ एवॊ उसका फडा बाई
, ,
सै फसन कअ िादी सव ीुकअ सै फॊदी कअ िादी बी सव गई थी दकन्द्तु उि
अऩयाध सवने के फाद तराक सव गमा। फडा बाई वतप्रभान भें ऩरयवाय कअ
देख ऩारयवारयक ण्थथधत साभान्द्म टतीत सवती सै येख कय यसा सै। फॊदी कअ -
फॊदी काया व्मक्तिगत साक्षात्काय भें साभाण्जक धाधभप्रक ऩृष्ठबूधभ के तसत

फतरामा दक उसका ऩरयवाय गाॉव भें सवने वारे सबी ऩवप्र ऩय धनमधभत रूऩ
,
से सण्म्भधरत सवता यसता सै टधतददन गाॉव भें फने भॊददय ऩय ऩूजा अीप्रना -
,
बी सवती सै ण्जसभें वस बी सण्म्भधरत सवता था। इससे टतीत सवता सै दक
फॊदी का ऩरयवाय धाधभप्रक रूऩ से आथथावान सै फॊदी के क्तऩता कअ ऩूवप्र भें सी
भृत्मु सव ीुकअ सै ऩरयवाय भें भाॉ एवॊ बाई सै गाॉव भें क ीा भकान सै इससे
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टतीत सवता सै दक फॊदी का ऩरयवाय गयीफ ऩरयवाय से सॊफॊधधत सै तथा
साधायण जीवन माऩन कयता सै फॊदी ने जेर भें यसकय अ छा नागरयक -
फनकय अऩनी वृद्ध भाता एवॊ बाई के साथ यसकय जीवन माऩन कयने कअ
,
इ छा व्मि कअ सै फॊदी का व्मवसाय अन्द्म फॊददमों के टधत साभान्द्म एवॊ
जेर टिासन के टधत ससमवगात्भक सै। फॊदी ददमे गमे धनदेिों का ऩारन
कयता सै। फॊदी जेर भें ऩूणप्र अनुिाधसत यसता सै फॊदी का जेर आीयण

सॊतवर्टद सवकय सुधायात्भक टतीत सवता सै। अतः रयऩवोप्र सादय टेक्तर्त सै।
-6/9/26
ससी/

वरयष्ठ ऩरयवीक्षा एवॊ कल्माण अधधकायी

केन्द्रीम जेर ग्वाधरमय

79. In the present case, the accused/appellant has criminal history of 4
cases although they are of trivial nature, but it shows the mental status of
appellant. For offence under section 376A of IPC and 6 of the POCSO
Act, 2012, the maximum sentence is life imprisonment for remainder of
life. It is equally true that only the Constitutional Courts can award life
imprisonment for the remainder of natural life without any remission. If
the facts and circumstances of the case are considered, then a minor girl
aged about 9 years was kidnapped, raped, and murdered brutally not by a
stranger, but by a person who was her maternal uncle by relationship. Not
only the security of minor girls been seriously jeopardized, but even the
sanctity of relationship has been murdered. Being a maternal uncle, it was
the bounden duty of the appellant to protect the minor niece, but instead
of doing that, she was made a victim of his lust. It is also not out of place
to mention here that initially, the appellant tried to kidnap and commit the
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NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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offence with ‗A‘ (PW-1), and when she ran away, he took away the victim
with him and ultimately raped and killed her.
80. After considering the proportionality of the crime committed, this
Court is of considered opinion that although the case in hand does not fall
within the category of the ―rarest of rare cases‖ as there is no report by the
State to show that the conduct of the appellant in jail is not normal, death
sentence awarded by the trial Court under sections 376A, 302 of the IPC
and section 5(m)/6 of the POCSO Act, 2012 deserves to be interfered with
because death sentence is an exception rather than rule.
81. Thus, considering the totality of facts and circumstances of the
case, this Court is of considered opinion that life imprisonment for
remainder of life without any remission would serve the deterrent policy
of sentencing.
82. Accordingly, the death sentence awarded by the trial Court for
offences under Sections 376A and 302 of the IPC and under Section
5(m)/6 of the POCSO Act, 2012, is converted into life imprisonment for
the remainder of life without any remission. The remaining sentences
awarded by the trial Court are hereby affirmed. The accused/appellant is
in jail. He shall undergo the jail sentence awarded by this Court.
83. A copy of this judgment along with the record of the trial court
shall be immediately sent back to the trial Court for necessary information
and compliance.
84. Accordingly, judgment dated 21/7/2026 passed by Special Judge
(under the POCSO Act, 2012), Datia in S.C. No. 15/2022 is hereby
affirmed and the death sentence is modified as directed above.
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NEUTRAL CITATION NO. 2026:MPHC-GWL:32891
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85. The death reference made by the trial court and the appeal filed by
the accused are decided accordingly.

(G. S. AHLUWALIA) (ANURADHA SHUKLA)
JUDGE JUDGE


(and)


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Signed by: ANAND
SHRIVASTAVA
Signing time: 28-10-2026
17:58:28