1 CRRFC-08/2018 & CR.A.5950/2018

High Court of Madhya Pradesh Bench at Gwalior

DIVISION BENCH : Hon.Shri Justice Sanjay Yadav & Hon.Shri Justice Vivek Agarwal

Criminal Reference No.08/2018 (Death Reference)

In reference

[Received from Fifth Additional Sessions Judge/ Special Judge, [Constituted under the Protection of Children from Sexual Offences Act 2012], Gwalior (M.P.).

Vs.

Jitendra Kushwah …..Respondent/Accused

with

Criminal Appeal No.5950/2018

Jitendra Kushwah ….Appellant

Vs.

State of M.P. through Police Station, Kampoo, Gwalior ...Respondent

--------------------------------------------------------------------------------------- Shri Rakesh Kumar Sharma, learned Senior Counsel as Amicus Curaie for the accused with Shri V. K. Agrawal, learned counsel

Smt.Ami Prabal Solanki, learned Dy.Advocate General for the respondent/State.

Shri Praveen N.Surange and Shri Harshvardhan Topre, learned counsel for the complainant.

Whether approved for Reporting :

J U D G M E N T (Delivered on this 25th day of October 2018)

Per Justice Vivek Agarwal :

The present Criminal Reference arises out of a judgment of conviction and order of sentence passed by the learned Fifth Sessions Judge/Special Judge (Under the Protection of Children

from Sexual Offenses Act, 2012) Gwalior (M.P.) on 27.7.2018, thereby convicting respondent Jitendra Kushwah S/o Shri Ramprasad Kushwah for an offence under Section 363 of the Indian Penal Code, 1860 (hereinafter shall be referred to as 'IPC') and sentencing with seven years R.I. and fine of Rs.2,000/-, in default of fine further one month's additional R.I. He has been further convicted under the provisions of Section 366 of IPC with ten years' R.I. and fine of Rs.2000/-. In default of payment of fine one month's additional R.I. Said respondent has been further convicted under the provisions of Section 376 (A) (B) of the IPC as introduced vide Criminal Law (Amendment) Act, 2018 made effective from 21st day of April 2018 with death by hanging. All the sentences were ordered to run concurrently.

2. The convict has filed Cr.A.No.5950/2018 against the said judgment. Therefore, both the Reference and Appeal have been heard together.

3. Prosecution case in short is that on 20th June 2018, father of the deceased, namely, Radhakrishna Yadav (P.W.1) alongwith his minor daughter and wife Vandana (P.W.2) had come to Gwalior from his native place Mou, District Bhind to attend a marriage function at place of one Rakesh @ Dharasingh Yadav (P.W.3) R/o Gadda Vala Mohalla, Jhansi Road, Gwalior at about 7.00 p.m. Marriage function was to be performed at Community Hall, Chandbadi, where the family of Radhakrishna had reached at about 9 p.m. In the intervening night of 20th and 21st June 2018, when they were participating in various ceremonies related to marriage, at about 1.00 a.m., daughter of the complainant was asked to deliver mobile phone to P.W.1.After taking such mobile phone, at about 1.30 a.m., P.W.1 asked his wife Vandna (P.W.2)

as to whereabouts of their daughter when she informed that their daughter had gone to drink water and has not returned. Thereafter, they started searching for their daughter but she was not traced when certain persons informed them that CCTV cameras have been installed in the house of one Dr.Deepak Yadav (P.W.14) residing close to Community Hall and that may throw some light as to whereabouts of their daughter. When they had seen CCTV camera footage on 21.6.2018 at the place of Dr.Deepak Yadav (P.W.14), they noticed that at about 1.22.15 hours a man in a T-shirt appearing to have a white colour collar and wearing black shoes was going towards the side of the jungle alongwith their daughter. Later on at about 2.48 a.m. same boy was seen returning back alone, then they had searched for their daughter in the jungle where they found her dead body lying close to bushes. Some members of searching party had reported the matter to the police control room from where police as well as Senior Scientific Officer from Forensic Science Laboratory had arrived at the scene of happening and then P.W.1 had lodged Dehati Nalishi (Ex.P/1), on the basis of which Marg Intimation (Ex.P/2) was recorded and subsequently at 19.40 p.m. FIR (Ex.P/12) recording Crime No.467/2018 (Ex.P/12) was registered under the provisions of Section 302 of IPC by Reena Shakya (P.W.6).

4. Sub Inspector Babulal Yadav (P.W.29) had prepared spot map (Ex.P/3). Senior Scientific Officer Akhilesh Bhargav (P.W.19) had prepared the investigation report (Ex.P/33) and a map (Ex.P/34). Balkrishn Mihoriya (P.W.20) had taken about 20 photographs from the spot, which have been marked as Art. 1 to Art. 20. He had also prepared one Compact Disc (CD) (Art.21)

and had forwarded it to the Police Station Kampoo vide Ex.P/35. Indrapal Singh Tomar (P.W.26) had seized photograph and Videography CDR containing 700 MB of data, over all 21 articles were seized in presence of Sandeep Dangi (P.W.27), Uttam and Mahesh who had prepared, the seizure memo (Ex.P/41).

5. Babulal Yadav (P.W.29) had seized concrete soil vide Ex.P/18 and had prepared Safina Form (Ex.P/24) in front of Ajay Singh Yadav (P.W.10) and Kartar Singh Yadav (P.W.11). He had also prepared Naksha Panchayatnama (Ex.P/25).

6. Constable Kamlesh Kumar (P.W.12) had registered untimely death intimation (Akal Mrityu Ki Soochna) (Ex.P/26). Patwari had prepared a Nazri Naksha (Ex.P/28) in front of Sharad Yadav (P.W.20).

7. It has come on record that Balveer Singh Kaurav (P.W.7) while watching the CCTV footage had identified the accused as Jitendra Kushwah, resident of Mandhre Ki Mata, who was engaged in the business of selling snow balls at Katora Tal. He had prepared identification Panchnama (Ex.P/13) and thereafter accused was arrested vide arrest memo (Ex.P/42) and intimation of arrest was given to the relatives of the accused vide Ex.P/48.

8. On the basis of information given by the accused his memorandum under Section 27 of the evidence Act (Ex.P/43) was prepared and thereafter vide seizure memo Ex.P/44 his maroon colour T-shirt, navy blue colour underwear with blood stains and black pair of shoes one of which was having a thorn in its sole were seized. On his identification, spot panchnama (Ex.P/45 and P/46) were prepared to show the way through which deceased was carried. Babulal Yadav (P.W.29) had prepared a search Panchnama (Ex.P/49) of the house of the accused.

9. Dr.Sarthak Juglan (P.W.17) had conducted post mortem on the dead body of the deceased and had given post mortem report (Ex.P/30) and query report (Ex.P/31). He had also given a packet of clothes, two bottles of viscera, two anal slides, two vaginal slides, two anal swab, two vaginal swab, sample seal and packet of salt in a sealed condition, which was brought by Jasweer Gurjar (P.W.24) to the Police Station and was seized by Constable Kamlesh (P.W.14) vide seizure memo (Ex.P/27).

10. During investigation, Babulal Yadav (P.W.29) had obtained sanction from the Inspector General of Police, Gwalior Zone, for conduct of DNA test, which was extended vide Ex.P/55, as a result of which Superintendent of Police, Gwalior had directed for medical examination of the accused. Accused was examined by Dr.J.P.Goyal (P.W.16), who had tested accused Jitendra Kushwah for his sexual potency with his consent and on local examination had found abrasion mark measuring 3 x 1 cm. on the rear side of the right elbow with blackening. Another abrasion measuring 3 x 2 cm. was found on the rear part of left elbow with some darkness. On his genitals, no external injury was found and he was found to be capable of performing sexual intercourse. After obtaining material of his ejaculation, two slides were prepared, so also samples of his nails from both the hands (Ex.P/15) and sample of hair from head, pubic hair were seized and sealed and were handed over to police also, one navy blue underwear was also sealed and handed over to police (Ex.P/17). Similarly, Dr.Sudha Ayangar (P.W.15) with the help of her technician Gautam had taken blood sample vide Ex.P/19 for DNA testing and such sample was sealed by the Investigating Officer on 23.6.2018 vide seizure memo (Ex.P/18) in front of witness

Sandeep Dangi (P.W.27) and Balveer Kaurav (P.W.7).

11. I.O. had also seized CCTV footage in a pen drive vide Ex.P/20 from Dr.Rahul Yadav in presence of Akash Sharma (P.W.8) and Pratnesh Aathle (P.W.9). Similarly, a certificate under Section 65B of the Evidence Act was obtained from Pratnesh Aathle (P.W.9) vide Ex.P/23. Similarly, a certificate under Section 65B (Ex.P/21) was given by Akash Sharma.

12. The samples were received for FSL testing in the office of the Director, State Forensic Science Laboratory, Sagar, vide Ex.P/38, as were dispatched from the office of S.P. Gwalior vide Ex.P/51. A copy of the FSL report given by in charge Officer vide Ex.P/52, P/53 and P/54 in regard to DNA testing as well as testing of other seized articles is on record.

13. In the post mortem report (Ex.P/30), following injuries were found on the body of the deceased girl, who was aged about 7 years :-

1. External entire genitalia including both lateral lips (majora + minora) diffusely deep-reddened in appearance with bruise extending over immediate inner thigh left side, reddish in colour vaginal introitus deep reddish discoloured with active bleeding along circumference of vaginal opening extending deep into vaginal mucosa (tear evident at 3 O' clock, 5 O' clock, 6 O' clock, 8 O' clock) positions.
1. Diffusely reddening of perineal region along with parineal area present tear of anal circumference over verge evident at 6' O clock position with base over anal margin extending into anal mucosa, tear size 1.0 cm. x 0.6 cm.

Other injuries (Ante mortem)

1. Multiple Abrasions present over left side forehead just anterior to hair-line size varying from 3.4 cm. x 2.4 cm. to 2.0 cm. x 1.6 cm.
1. Multiple abrasions present over right side forehead anterior to hair-line size varying from 2.4 cm. x 2.0 cm. to 1.2 cm. x 0.8 cm.
1. Abrasion bridge of nose over root, size 2.8 cm. x 1.8 cm.
1. Abrasion over bridge of nose at nearly mid, size 3.6 cm. x 2.8 cm.
1. Abrasion tip of nose, size 2.6 cm. x 2.2 cm. (frothy fluid evident at both nostrils with clogging of both openings).
1. Lacerated wound over tip of nasal septum (inner aspect) size 1.2 cm. x 0.8 cm.
1. Multiple scratch abrasions present over left malar eminence criss-crossing each other in an area 12.4 cm. x 10.8 cm., size varying from 6.2 cm. x 2.4 to 3.8 cm. x 2.6 cm.
1. Multiple abrasions present over right malar eminence, criss-crossing size 4.2 cm. x 1.8 cm.
1. Abrasions with superficial laceration present over chin in midline, size 1.2 cm. x 0.8 cm.
1. Bruise; fresh in appearance present over entire right half of lower lip with lateral of fracture of lower lip, surrounding tissues extensively ecchymosed.
1. Multiple criss-crossed abrasions present over left lateral aspect of neck extending from angle of mandible upto mastoid tip, size varying from 5.2 cm. x 1.8 cm. to 2.4 cm. x 2.2 cm. (intercepted)
1. Abrasions over left side mandibular body, left of midline, size 2.2 cm. (nearly circular.)
1. Multiple abrasions along right side lateral aspect of neck along lateral 1/3 rd size varying from 4.8 cm. x 3.4 cm. to 2.8 cm. x 1.4 cm. on dissection underneath tissues ecchymosed internally extending into deeper layers of muscle fascial planes of neck.
1. Abrasion along root of neck over right side at neck fold laterally, size 4.2 cm. x 2.6 cm.
1. Multiple abrasions with superficial lacerations present over dorsum of right arm and upper forearm alongsides elbow joint, size varying from 1.8 cm. x 1.2 cm. to 1.0 cm. x 0.8 cm.
1. Graze abrasion present all along dorsum of left forearm, size varying from 8.6 cm. x 5.8 cm. to 3.8 cm. x 2.8 cm. (intercepted).
1. Abrasion present over lateral aspect of left ankle joint, size 2.8 cm. x 1.8 cm.
1. Abrasion with superficial laceration present over right ankle joint lateral aspect size 2.8 cm. x 2.4 cm.
1. Graze abrasion (intercepted) present over posterior trunk in midline extending from just below inferior angle of inter scapular line up to lumbar region in an area size 15.8 cm. x 8.6 cm. extending either sides of midline, size

varying from 6.6 cm. x 4.8 cm. to 2.8 cm. x 2.2 cm.

14. Dr.Sarthak Juglan (P.W.17) opined that injuries mentioned in the report were fresh since death. Death was due to asphyxia as a result of combined effect of smothering and throttling. Death is homicidal in nature. Signs of forceful physical and sexual violence is present and duration of death was within 24 hours since post mortem examination. Vide report Ex.P/52 In-charge Officer of Regional Forensic Science Laboratory Gwalior had opined that in the viscera of the deceased no chemical poison was found.

15. A hair was detected by Akhilesh Bhargav, Senior Scientific Officer (P.W.19) at the time of spot inspection as is mentioned in his report (Ex.P/33), which was seized vide seizure memo (Ex.P/8).

16. As per the forensic report (Ex.P/53), the DNA profile of the hair seized from the hands of the deceased -Ex.C (B/R- 5962) and the DNA profile obtained from the blood sample of the accused - Ex.A (B/R-5960) and DNA profile obtained from nails of the accused -Ex.H (B/R-5967) was found to be matching from the DNA profile obtained from the seized underwear T-Shirt and paint of the accused Jitendra Kushwah, which were marked respectively as Ex.G (B/R 5966). It was pointed out that Y Chromosome STR DNA Profile available on viscera of the deceased and that on the clothes of the accused were similar. Similarly, it was observed that STR DNA Profile of male Autosomal obtained from Ex.C (B/R-5962) was similar to Autosomal STR DNA profile obtained from blood source Ex.A (B/R-5960) and Ex.H (B/R-5967) i.e. seized nails of accused.

17. Similarly, Ex.P/52 reveals that Y-Chromosome STR DNA Profile of male collected from the underwear of the deceased Ex.B (B/R-5961), Ex.D (B/R-5963) frock and vest of the deceased, and that of the vaginal slide Ex.E (B/R-5964) as well as anal slide obtained from the deceased Ex.F (B/R-5965) matched with the blood sample of the accused Ex.A (B/R-5960). Same results were found when genetic marker test was applied. This has been testified by Dr. Anil Kumar Singh (P.W.31).

18. On the basis of the report as mentioned above, it was concluded that there is clinching evidence against the respondent/accused Jitendra Kushwah; apart from the prosecution evidence consisting of last seen as has been concluded from the CCTV footage obtained from the residence of Dr.Rahul Yadav (P.W.18).

19. Charge-sheet has been filed. The case was committed for trial. Charges under Sections 363, 366, 376(A)(B), 302, 201 of IPC and Sections 5(i) read with Section 6 & 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 were framed.

20. The accused abjured his guilt and pleaded ignorance.

21. Prosecution has examined as many as 33 witnesses, of which most vital are Radhakrishna Yadav (P.W.1), father of the deceased, Smt.Vandna Yadav (P.W.2), mother of the deceased, Rakesh @ Dharasingh Yadav (P.W.3), relative of P.W.2, Reena Shakya (P.W.6), who had accompanied Akhilesh Bhargav, Sr. Scientific Officer (P.W.19) at whose instance FIR (Ex.P/12) was recorded, Balveer Singh Kaurav, Head Constable (P.W.7), Pratnesh Aathle (P.W.9), Sharad Yadav (P.W.13), Dr.Deepak Yadav (P.W.14), Dr.Sudha Ayangar (P.W.15), Dr.J.P.Goyal

(P.W.15), Dr.Sarthak Juglan (P.W.17), Rahul Yadav (P.W.18), Balkrishn Mihoriya (P.W.20), Sandeep Dangi (P.W.29), Babulal Yadav (P.W.29) and Dr. Anil Kumar Singh (P.W.31).

22. Shri Rakesh Kumar Sharma, learned Senior Advocate assisted by Shri V.K.Agrawal, Advocate, amicus curiae appointed for the accused, submits that fair investigation and fair trial was not given to the appellant/accused. He further submits that evidence was not collected but created by the prosecuting agency. Accused was not afforded proper and adequate opportunity to defend and trial court was moved and impressed by the public movements rather than the facts of the case as is reflected from para 95 of the judgment. It is further submitted that media trial and public trial affected the sentence and judgment was delivered in haste. Police and local authorities were harbouring sentiments against the accused and therefore they singled him out to be an encroacher and his house was demolished. Whereas the whole colony of which accused is a resident i.e. Mandhre Ki Mata, is an illegal colony. He further submits that tendency amongst the members of the judiciary to hog limelight in the name of speedy disposal of the trial was the main motivation and consideration before the learned Special Judge. It is submitted that incident took place in the intervening night of 20th - 21st June 2018, charge sheet was filed on 2.7.2018 and judgment was delivered on 27.7.2018. Learned Amicus Curiae submits that accused comes from a very poor background and the trial Judge appointed an Advocate from Legal Aid who was not experienced enough to be appointed for such a sensitive matter, inasmuch as in the past he had not conducted any murder trial independently, what to talk of such a sensitive and

sensational matter. It is submitted that on 3.7.2018 counsel from the Legal Aid was appointed for the accused, copy of the charge sheet was handed over to him and without affording any opportunity to prepare the case, charge was framed on 3.7.2018. It is pointed out from the Vakalatnama available on record that registration of learned counsel with the Bar Council of M.P. bears enrollment No.360/2010 and he was no match to assist the prosecution counsel having several years of experience. It is also pointed out that learned Additional Sessions Judge did not bother to verify from the counsel whether he had conducted any case under Section 376 or 302 of IPC and without verifying such facts appointed him to conduct a case in which for alleged offence capital punishment is provided. He submits that this violated the provisions of Article 22 and 39 (A) of the Constitution of India, which respectively guarantees for equal justice and free legal aid. It is submitted that legal aid is to be treated as a part of the right created under Article 21 and therefore it could not have been taken in a casual manner as has been reflected in the conduct of proceedings by the learned Special Judge.

23. Learned Amicus Curiae has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ranchod Mathur Wasawa Vs. State of Gujarat as reported in AIR 1974 SC 1143, wherein it has been held that in the matter of appointment of defence counsel what are the duties of Sessions Judge. Justice Krishna Iyer speaking for the Bench held that -

"Sessions Judge should view with sufficient seriousness the need to appoint State counsel for undefended accused in grave cases. Indigence should never be a ground for denying fair trial or equal justice. Therefore particular attention should be paid to appoint competent advocates, equal to handling the complex

cases-not patronising gestures to raw entrants 'to the Bar. Sufficient time and complete, papers should also be made available, so that the advocate chosen may serve the cause of justice with all the help at his command.

It has been further held that -

"There should be a sensitive approach made by the court to see that the accused felt confident that his counsel chosen by the court has had adequate time and material to defend him properly."

24. Similarly, reliance has also been placed on the judgment of

Allahabad High Court in the case of Ramawadh Vs. State of

U.P. as reported in 1999 Cr.L.J.4083, wherein in a murder trial, Division Bench of Allahabad High Court observed that if amicus curiae appointed by the court fails to discharge the duty of defending accused, trial is vitiated and matter be sent back for

retrial.

25. Reliance has also been placed on the judgment of Hon'ble

Supreme Court in the case of Madhav Hayawadanrao Hoskot

Vs. State of Maharashtra as reported in AIR 1978 SC 1548,

wherein in para 26.4, it has been observed as under -

"Where the prisoner is disabled from engaging a lawyer, on reasonable grounds such as indigence or incommunicado situation, the Court shall, if the circumstances of the case, the gravity of the sentence, and the ends of justice so requires assign competent counsel of for the prisoner's defence, provided the party does not object to that lawyer."

It is submitted that these very vital directions issued by the Hon'ble Supreme Court in the peremptory sense of Article 21 are relevant.

26. Learned amicus curiae pointed out that there were several flaws in the conduct of trial and not only the counsel was immature, but the conduct of the Court too was far from being

matured. To support this argument, it is pointed out that accused was produced twice, firstly when the charges were framed and secondly, when his statements were recorded under Section 313 of Cr.P.C. Learned amicus curiae, appointed by the trial Court met accused only once. It is pointed out that during whole trial accused was not produced and he was subjected to trial through video conferencing which was violative of the provisions contained in Sections 273 and 327 of Cr.P.C.

27. Section 273 of Cr.P.C. provides that evidence is to be taken in presence of accused and reads as under :-

"273. Evidence to be taken in presence of accused. Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. Explanation.- In this section," accused" includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code. "

Similarly Section 327 of Cr.P.C. provides that Court to be open. It is submitted that the purpose of calling the accused in the Court is so that counsel who is cross-examining various prosecution witnesses may cross check and consult the statements given by witnesses and cross-examine accordingly. It is submitted that no order was passed under sub-section (3) of Section 327 of Cr.P.C. by the learned Special Judge, and therefore, the whole trial conducted through video conferencing became a media trial. It is contended that there being no previous sanction by the trial Court yet the media went on to daily reporting, and therefore, if trial Judge would have acted sensitively, then the whole trial would not have become a media trial. In support, learned counsel has placed reliance on the judgment of the Supreme Court in the case

of State of Maharashtra Vs. Dr. Praful B. Desai as reported in (2003) 4 SCC 601 (para 20). It is submitted that presence of accused was mandatory as pleader was deprived of the opportunity to seek instructions and cross-examine the witnesses. Learned counsel has also cited a letter written by S.P., Gwalior, to SDO(P), Gwalior, on 23.6.17 asking the SDO(P) that offence is not only heinous but sensational (Sansanikhej), therefore, he should file charge-sheet expeditiously before the trial Court. This supports the belief that whole incident was rushed through under the media pressure to save the actual culprit and accused Jitendra Kushwaha has been falsely framed.

28. It is pointed out that admittedly as per Radhakrishan Yadav (PW-1) he had seen the CCTV footage of the camera of Dr. Deepak Yadav on 21st June, 2018 between 9-9.30 am, but Dehati Nalishi (Ex.P/1) was lodged at 12 noon and FIR (Ex.P/12) was lodged at 19.40 hours registering crime No.267/18 against unknown person and thereafter Balveer Singh Kaurav (PW-7) in his deposition mentioned that he had seen camera recording alongwith Sub-Inspector Babulal Yadav (PW-29) & Constable Sandeep at the place of Dr. Deepak Yadav where Dr. Rahul Yadav (PW-18) had shown camera recording. A memorandum (Ex.P/13) in this regard was prepared. After viewing such recording, he had informed that he knows the person who has taken the girl and he is seller of snow balls at Katoratal and resident of hutments at Mandre Ki Mata. It is pointed out that no missing person report was lodged when parents of the deceased had discovered that their daughter was not traceable at 1.30 am and no accused who will commit such heinous offence will come back to the same place, but in the present case it is apparent that

accused had returned back to the Community Hall. It is also pointed out that the girl was walking behind the accused showing no hesitation or ignorance of the accused which means that the person behind whom deceased was walking was a known person to the deceased and she was fully familiar with him. There is no evidence led by the prosecution to show that accused Jitendra Kushwaha was known to the family or host of the family, and therefore, on the basis of overall conduct, specially in the light of the fact that video footage is blurred in camera No.4, recording CCTV footage at 1.23 am, it cannot be said with certainty that appellant is the accused.

29. It is also pointed out that CCTV footage was seen by Balveer Singh Kaurav (PW-7) at 6.20 pm and he had since identified the accused, there was no justification in lodging the FIR against an unknown person at 19.40 hours. It is also pointed out that though Dehati Nalish was recorded at 12 noon on 21.6.18, but Dehati Nalishi (Ex.P/1) contains crime number which shows that the crime was ante-dated and after deciding to frame a particular person whole investigation was carried out so to frame the accused. Similar is the assertion in regard to spot map (Ex.P/3) prepared by IO Babu Lal Yadav (PW-29) on 21.6.18 at 15.15 hours wherein crime number is mentioned. It is also pointed out that even the property seizure memo (Ex.P/8) prepared on 21.6.18 at 14.15 hours contains crime number. In support, learned counsel has placed reliance on the judgment of this Court in the case of Munshi Singh Vs. State of M.P. as reported in 1981-II MPWN SN 101 wherein it has been held that in the ordinary course of things, the crime would be and has to be registered after the first information report. That being the

position, it becomes suspicious for the crime number to appear on the seizure memo and the arrest memo even before the registration of crime. There is no explanation for these infirmities. It was under these peculiar circumstances, learned counsel for the appellant argued that it appears to be a concocted case against the accused.

30. It is pointed out that senior scientific officer had reached on the scene of crime at 12.30 pm and had prepared spot inspection report (Ex.P/33) but in such spot inspection report, it is mentioned that he had received intimation about the crime at 11.30 am on 21.6.18. It is questioned that how intimation could have been received by senior scientific officer, Shri Akhilesh Bhargava (PW-19) prior to lodging of Dehati Nalishi which sets in motion criminal trial. It is also argued that though in Ex.P/33 there is mention of seizure of clothes of the deceased and a hair kept in white colour paper, as was obtained, entangled between fingers and the palm of the deceased by the senior scientific officer, but their seizure has been prepared at 2.15 pm which supports the apprehension of the accused that he has been falsely framed.

31. Accused was arrested on 22.6.18 vide Ex.P/42 at 17.00 hours, but his memorandum (Ex.P/43) under Section 27 of the Evidence Act was drawn at 23.00 hours in which he had not disclosed presence of shoes but vide seizure memo Ex.P/44 shoes have been recovered. His clothes were seized on 23.6.18 at 19.00 hours vide Ex.P/44 after more than 26 hours of his arrest. It is also pointed out that two Panchnamas, namely, Ex.P/45 and Ex.P/46 have been prepared on 23.6.18 at 20.30 hours and 21.30 hours respectively which are not admissible under the provisions of the Evidence Act. It is also pointed out

that vide Ex.P/8 soil was collected again. To substantiate his argument that evidence was created, it is pointed out that when the accused was allegedly walking back from the scene of crime to the Community Hall and then to his house, it is not possible that soil remained attached to the shoes and the recovery of shoes is not admissible as it is not based on the memorandum given by the accused. It is also pointed out vide Ex.P/54, chromatography of relative density of samples of soil collected vide Ex.P/ D, I and J is doubtful. There is no description of the accused in Dehati Nalishi (Ex.P/1) which has been prepared after seeing the CCTV footage so to match with the actual description of the accused as identified by Balveer Singh Kaurav (PW-7). No TIP was conducted and when an accused appears through video conferencing, then he is alone and then it is nobody's guess to point out that a particular person appearing on screen for video conferencing is an accused, whereas if proper identification would have been carried out, then there is possibility of mixing of 3-4 similar persons and that leads to a better and more reliable identification.

32. It is pointed out that Sharad Yadav (PW-13) has deposed that he had seen one person taking a minor girl from the corner of the house of Dr. Deepak Yadav and he had asked that man as to where he was taking the girl and what was his name and then accused had given his name as Jitendra. It is pointed out that presence of Sharad Yadav (PW-13) is not seen from the CCTV footage nor it is apparent that accused stopped to talk to anybody and also Sharad Yadav (PW-13) did not disclose such incident to anybody. Learned counsel has placed reliance on the judgment of the Supreme Court in the case Balbir v. Vazir and others as

reported in AIR 2014 SC 2778 wherein in para 22 Hon'ble Supreme Court has dealt with the aspect of identification parade and held that when the witnesses did not have sufficient opportunity to see the faces of the accused, then in such a case failure to hold identification parade is a serious drawback. Similarly, reliance has been placed on the judgment of the Supreme Court in the case of Salveraj v. State of Tamil Nadu as reported in AIR 1976 SC 1970 wherein Hon'ble Supreme Court was pleased to set aside the concurrent finding of guilt on the ground that prosecution story was highly improbable and inconsistent with the ordinary course of human nature. It is also pointed out that most of the witnesses belong to the same community and presence of some of the witnesses of seizure like Surendra Singh Yadav (PW-28) resident of Ward No.2 Mau, is highly improbable and Radhakrishan Yadav (PW-1) and Rakesh Dhara (PW-3) are related to each other, whereas Balveer Singh Kaurav (PW-7), star witness of the prosecution, is omni- present and no motive could be assigned to the accused. This being a case based on circumstantial evidence, extraordinary interest taken by Balveer Singh Kaurav (PW-7), Surendra Singh Yadav (PW-28) and Rakesh Dhara (PW-3) does not inspire confidence. In support of this argument, reliance has been placed on the judgment of the Supreme Court in the case of State of UP v. Arun Kumar Gupta as reported in AIR 2003 SC 801.

33. It is also pointed out that there are several ambiguities in collection of blood sample and nails of the accused inasmuch as it is apparent from Ex.P/16 that blood sample was seized at the police Station on being brought by Balveer Kaurav in presence of two police witnesses, namely Sandeep and Uttam Kushwaha.

His underwear, pubic hair and hair from head were also seized vide Ex.P/17 at the police Station itself on being brought by Balveer in presence of Sandeep Dangi and Arvind, again both of them are the police witnesses, whereas as per Ex.P/19, so also the evidence of Dr. Sudha Iyangar (PW-15) she had collected and sealed such samples at pathology department of GR Medical College, whereas as per the evidence of Balveer Kaurav (PW-7) and Babulal Yadav (PW-29) these sample were seized at the police Station inasmuch as SP, Gwalior, had sent a communication Ex.P/56 to the Superintendent and Joint Director, JAH Hospital, to depute concerned doctors at Kampoo police Station so that law and order situation may not arise. These witnesses, namely Balveer Kaurav (PW-7) and Babulal Yadav (PW-29) have deposed that sample was obtained at police Station. These ambiguities in the deposition of Dr. Sudha Iyangar (PW-15) in regard to collection of blood sample and Dr. J.P. Goyal (PW-16) in regard to collection of semen slide, pubic hair, nails and hair of the accused creates doubt that to save the real culprit samples of the real culprit were sent by the police as it had shown its seizure at the police Station subsequently and not at the hospital so to falsely frame the present accused who comes from very poor and humble background.

34. It is also submitted that Akash Sharma (PW-8) and Pratnesh Aathale (PW-9) are privately employed in the SP office, and therefore, are not public servants to issue a certificate under Section 65B of the Evidence Act. CCTV footage was stored in pan drive and a compact disk was prepared whereas hard disk is article B. Certificates, Ex.P/21 given by Akash Sharma (PW-8) under Section 65 B of the Evidence Act, Ex.P/23 given by

Pratnesh Aathale (PW-9) and Ex.P/32 given by Dr. Rahul Yadav (PW-18) under Section 65(b) of the Evidence Act are not admissible. It is also pointed out that seized items like blood, nails, hair were sent to the FSL on 24.6.18 vide Ex.P/50 while remaining articles were sent on 25.6.18 vide Ex.P/51 which also creates doubt as regard to contamination of the samples.

35. It is also pointed out that Ex.P/33, report prepared by Senior Scientific Officer Shri Akhilesh Bhargava (PW-19) does not speak of recovery of any thread as has been shown in Ex.P/8. 36. Learned counsel for the accused argued that trial Court failed to conduct trial properly and marked articles on soil, hair, pubic hair; whereas, article can be marked only on such items which have distinguishable and identifiable features, else exhibits are marked.

37. It is also pointed out that different notes marked by learned Sessions Judge during the examination and cross-examination of the witnesses are her own opinion not supported by TIP and witnesses have been forced to endorse the views of learned Additional Sessions Judge.

38. It is further submitted that Balveer Singh Kaurav (PW-7) has admitted and a note has been placed in his deposition that camera No.4 was not showing any picture that accused is going from Community Hall side towards jungle which proves that certificates Ex.P/21 and Ex.P/23 are false and such certificates have been issued in violation of the provisions contained in Section 65(c) of the Evidence Act. Similarly, it is mentioned that certificate given by Dr. Rahul Yadav as Ex.P/32 under Section 65B of the Evidence Act is not admissible as he is not an expert on the subject. It is also pointed out that there is no observation

that person who was spotted in camera No.3 was going towards jungle or the scene of crime, was same as was spotted in camera No.4 while coming back. Therefore veracity of identification is questioned. It is also pointed out that there is no material to show that guidelines for preservation of seminal swabs and blood stains was followed and sample had reached to the concerning laboratory within 72 hours of their collection. It is also pointed out that samples were neither collected nor sent as per the specifications of CDFD (Centre for DNA Finger Printing and Diagnostic), Hyderabad; and therefore, no reliance can be placed on such DNA report. It is also submitted that in the recording of camera No.4, showing girl following the accused no colour of the dress is seen and even face of the girl and the accused are not distinguishably visible. A question has been put to the identity of the accused while going as recorded in camera No.4 to point out that when the alleged accused was returning at 2.48 hours, then his face is visible but in absence of any description of the accused in Dehati Nalishi and the FIR, it cannot be said with certainty that he is the same person.

39. It is also pointed out that the colour of the frock has been mentioned as cream whereas no colour is visible. There is no material on record to show that girl was forcibly taken. Even colour of the collar of the accused while going is not visible as white and demenour of the accused while coming back does not reflect that he has committed any crime. There is no criminal history to club him in the category of hardened and habitual criminals. Even the face of the girl is not visible.

40. It is submitted that in fact the lacunae in conduct of investigation point out that prosecution is trying to save actual

culprit. They are trying to shield the actual culprit and to buttress this argument, learned amicus curiae points out that senior scientific officer, Akhilesh Bhargava (PW-19) had seized a hair from the hands of the deceased girl and had kept it in a white paper but its seizure has been shown subsequently vide Ex.P/8. So also, shortcomings in collection of blood sample, sample of nails, semen etc. and carelessness of the IO is evident. On the basis of such lacunae in investigation, it is submitted that it is possible that police was knowing the actual culprit who was a close relative of the deceased and to save him they have planted samples of the present appellant who according to him has been simply planted as an accused to save such close relative.

41. It is submitted that this case is that of suspicion and circumstantial evidence, and therefore, there is no justification to award capital punishment. It is also submitted that chain of events is not complete, and therefore, as held by Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra as reported in AIR 1984 SC 1622 that there is difference between 'may be proved' and 'must be or should be proved', prosecution can presume that it may have proved the case but it has not fulfilled the requirement of bringing their case in the category of "must be proved".

42. It is pointed out that in the case of Navaneethakrishnan v. State by Inspector of Police as reported in AIR 2018 SC 2027 referring to the provisions contained in Section 3 of the Evidence Act in regard to circumstantial evidence, it has been held that last seen theory requires corroboration and accused cannot be convicted solely on the basis of evidence of last seen together. In para 18 it has been laid down that "it is a settled legal position

that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone can't discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration." Similarly, reliance has been placed on the judgment of the Supreme Court in the case of Kanhaiya Lal Vs. State of Rajasthan as reported in (2014) 4 SCC 715; wherein, in para 12 it has been held that "the circumstance of last seen together does not by itself necessarily lead to inference that it was accused who committed crime. There must be something more establishing connection between accused and 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." In this context, evidence of Dr. Sarthak Juglan (PW-17) has been referred to, to submit that there was no homicidal injury on the part of the deceased and all the injuries were in the form of abrasions.

43. Learned counsel has placed reliance on the judgment of the Supreme Court in the case of State of Andhra Pradesh v. Punati Ramulu and others as reported in AIR 1993 SC 2644; wherein it was found that, investigating officer did not record FIR after receipt of information of cognizable offence and register the complaint as FIR after reaching the spot and after due deliberations, consultations and discussion, then it was held that complaint could not be treated as FIR and it would be a statement

made during investigation and hit by Section 162 Cr.P.C. Similarly, it has been held that testimony of interested witnesses could not be relied upon in absence of strong corroborative evidence of clinching nature. It is pointed out that Sharad Yadav (PW-13) is also a planted witness and has been planted to corroborate the evidence of Balveer Singh Kaurav (PW-7) who had prepared a memo (Ex.P/13) after seeing CCTV footage revealing the identity of the accused. This is not permissible and in fact vitiates the trial.

44. It is also argued that present case is not that of a faulty investigation but is a case of concocted and stained investigation. Reliance has been placed on the law laid down by the Supreme Court in the case of Mahavir Singh vs. State of MP as reported in (2016) 10 SCC 220 which lays down duties of investigating officer dealing with the murder and it has been held that it is expected to be diligent, truthful and fair in his approach and his performance should always be in conformity with the police manual and a default or breach of duty may prove fatal to the prosecution's case. In that case, Hon'ble Supreme Court observed that investigation was carried out with unconcerned and uninspiring performance. There was no firm and sincere effort with the needed zeal and spirit to bring home the guilt of the accused. Therefore, Supreme Court held that High Court erred in reversing the finding of acquittal recorded by the trial Court and thus restored the acquittal. Placing reliance on such judgment, it is submitted that this is a case fit for acquittal as the investigation is tainted and faulty and pocket witnesses have been used by the IO.

45. Learned amicus curiae in all fairness submits that firstly

the accused is innocent and is entitled to acquittal from conviction. In the alternative, it is submitted that this is first offence on the part of the accused. There are no circumstances which will qualify for inclusion in the category of a "aggravating circumstance" to form the basis of special reasons in Section

354(3) of Cr.P.C. In this regard, reliance has been placed on the

judgment of the Supreme Court in the case of Bachan Singh v.

State of Punjab as reported in AIR 1980 SC 898. In para 204

following mitigating circumstances have been mentioned :-

"(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. It the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."

The Hon'ble Supreme has held that Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. Hon'ble Supreme Court further held that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) of Cr.P.C., namely that, for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. 46. Reliance has also been placed on the judgment of the Supreme Court in the case of Amit v. State of Uttar Pradesh as reported in AIR 2012 SC 1433 wherein the Hon'ble Supreme Court pointed out that there is change of opinion since delivery of judgment in the cases of State of UP v. Satish as reported in AIR 2005 SC 1000 and Bantu v. State of UP as reported in (2008) 11 SCC 113 where punishment of death sentence was

handed over for the offence of rape of a child followed by brutal murder, in the case of Sebastian alias Chevithiyan v. State of Kerala as reported in (2010) 1 SCC 58 and in the case of Rameshbhai Chandubhai Rathod v. State of Gujarat as reported in AIR 2011 SC 803 to the effect that, in such case of rape followed by murder by a young man instead of death sentence a life imprisonment should be awarded with a direction that life sentence imposed will extend to the full life of the appellant but subject to any remission or commutation at the instance of the Government for good and sufficient reasons especially when there is nothing in evidence to suggest that he is likely to repeat similar crimes in future. On the other hand, given a chance he may reform over a period of years. Similarly, reliance has been placed on the decision of Supreme Court in the case of Selvam vs. State as reported in AIR 2014 SC 1911 which too

was a case under Sections 376 and 302 of IPC where a defenceless minor innocent girl of 9 years of age was raped and murdered but considering the facts and circumstances of the case, death sentence was converted into life imprisonment. Similarly, reliance has been placed on the judgment of the Supreme Court in the case of Tattu Lodhi ailas Pancham Lodhi v. State of M.P. as reported in AIR 2016 SC 4295 where an accused found guilty of kidnapping, attempt to rape and murder was tried on the anvil of circumstantial evidence and it was held that facts of the case do not make a, 'rarest of rare', case so as to confirm death sentence of the accused. Therefore, death sentence was modified but imprisonment for life with further direction that he shall not be released from prison till he completes actual period of 25 years of imprisonment.

47. Learned Deputy Advocate General for the State submits that this is a case of circumstantial evidence and refers to para 11 of the impugned judgment to point out that first disputed question is as to whether minor was seen for the last time in living condition alongwith the accused on the fateful day at about 1.22 am going towards scene of crime. It is pointed out that so many doubts have been raised by the learned counsel for the accused about timing, mentioning of crime number on the documents prepared prior to registration of crime, but we cannot lose sight of the fact that simultaneously several actions were undertaken. When dead-body was recovered after watching CCTV footage, then somebody from the family or the crowd had intimated the police control room and that in turn had informed the senior scientific officer Akhilesh Bhargava (PW-19); therefore, mentioning of time of intimation at 11.30 am prior to registration of

Dehati Nalishi by Shri Akhilesh Bhargava in Ex.P/33 is not of much significance. She has placed reliance on the judgment of this High Court in the case of Amar Singh and others vs. State of M.P. rendered in Criminal Appeal No.249/1994 in which in para 42 it has been observed that addition of number of FIR in the seizure memo subsequently by itself is not fatal to the prosecution case. Similarly, reliance has been placed on Division Bench decision of Madhya Pradesh High Court at Indore Bench in the case of Ramsingh and others vs. State of M.P. decided on 27.10.2006 wherein in para 18 Division Bench of this High Court has held that mention of crime number in the spot map (Ex.P/2) would not cause any dent to the prosecution case because no question was put to the I.O. as to when crime number was mentioned on the spot map (Ex.P/2) and seizure memo of blood stained and controlled earth without affording an opportunity to explain the same by the IO, the defence could not get any benefit. It is also held that apart from this, infirmity in the investigation would not be sufficient to discard the eye-witnesses account and lodging of report. It is also submitted that as per the law laid down by the Supreme Court in the case of Aher Raja Khima v. State of Saurashtra as reported in AIR 1956 SC 217 role of police authorities in investigation should not be doubted. This observation was reiterated subsequently in the case of Jameel Ahmed and another v. State of Rajasthan as reported in AIR 2004 SC 588. Similar view has been taken by the Supreme Court in para 225 of its judgment in the case of Yakub Abdul Razak Memon vs. State of Maharashtra as reported in (2013) 13 SCC 1.

48. It is also submitted by learned Deputy Advocate General

that the argument of learned senior counsel that sufficient time was not given to the counsel for the accused has been dealt with by the Supreme Court in the case of Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid vs. State of Maharashtra as reported in (2012) 9 SCC 1 and in para 501 and 503 the Supreme Court has held that since counsel did not object at that time that sufficient time has not been given to him, therefore, it cannot be said that the trial has been vitiated for not providing the sufficient time.

49. In regard to video conferencing, it is submitted that trial was conducted through video conferencing and presence of the accused was ensured through video conferencing keeping in view the aspect of safety of the accused, and therefore, absence of the accused in person before the Court has not caused any prejudice as has held by the Supreme Court in the case of State of Maharashtra vs. Praful B. Desai as reported in AIR 2003 SC 2053. It is also submitted that there is nothing like media trial and judges are immune of such publicity and there is no material on record to show that media trial has prejudiced the accused. It is also submitted that no fault can be attributed to uses of CCTV footage as use of such modern technique for crime investigation have been approved by Madras High Court in the case of K. Ramajayam vs. The Inspector of police as reported in 2016 CrLJ 1542. It is also submitted that recovery made from the accused has been duly proved and sanctity of prosecution witnesses should not be questioned as there is no material on record to show that either they were interested witnesses or were tainted. Reference has also been made to Criminal Reference No.1/2018 (State Vs. Vinod alias Rahul Chouhtha) decided by

the Principal Seat of this High Court, wherein death sentence has been confirmed. It is submitted that looking to brutal rape of a girl child of 6 years of age, death penalty needs no interference. It is also submitted that case of the prosecution stands proved on the basis of FSL reports, and therefore, no further quest is necessary. 50. Learned counsel for the complainant Shri Praveen N.Surange submits that while considering the quantum of punishment age of the victim, beastly act of the accused on a minor girl of 6 years has to be taken into consideration. It is submitted that there is sufficient evidence to point out that it is the accused and accused alone who was responsible for such beastly act and slight haziness in CCTV footage cannot be allowed to derive any benefit for the accused. It is submitted that even if there are certain exaggerations or element of falsehood or embellishment, then also whole evidence cannot be discarded as untrue as has been held by the Supreme Court in the case of Abdul Gani vs. State of MP as reported in AIR 1954 SC 31. It is submitted that maxim of 'falsus in uno falsus in omnibus' has no application in India. In fact, in the case of Sucha Singh and another vs. State of Punjab as reported in AIR 2003 SC 3617 Supreme Court has held that Court should separate grain from chaff.

51. Learned counsel for the complainant further submits that since present case is that of circumstantial evidence, therefore, decision of Supreme Court in the case of Sonu vs. State of Haryana as reported in (2017) 8 SCC 570 which lays down principles to be followed can be taken as guide, they are as under :-

"1. The circumstances from which an inference

of guilt is sought to be proved must be cogently or firmly established.

The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused.
The circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.
The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

52. It is also submitted that blood sample of accused Jitendra Kushwah was taken in presence of a qualified medical practitioner, Dr. Sudha Iyengar (PW-15), in presence of witnesses with the consent of the accused and this fact has been admitted by the accused that his blood sample was obtained with his consent, therefore, merely on certain technicalities or omissions as to whether blood sample was taken at the medical college or at the police Station and similarly whether sample of nail was obtained vide Ex.P/16 by Dr. J.P. Goyal (PW-16), it cannot be disputed that defence counsel has failed to successfully crossexamine such witnesses on to the aspect of adulteration of samples. Nothing prevented such witnesses from crossexamination, and therefore, minor procedural lapses are not sufficient to belie the prosecution story.

53. It is submitted that lot of time and energy has been consumed to point out that when hair was found entangled between finger and the palm of the deceased and was wrapped in the white paper, then why its seizure has been shown subsequently vide Panchnama Ex.P/25. It is submitted that Dr.

J.P.Goyal (PW-16) had taken sample of hair from the accused and DNA profile of that sample matches with the sample of hair sealed vide Ex.P/25, then such trivial issue will not fail the prosecution story. Reliance has been placed on the judgment of the Supreme Court in the case of State Of Karnataka vs K. Yarappa Reddy as reported in (1999) 8 SCC 715 wherein the Supreme Court has held that "the Court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made the casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it.

54. In regard to evidentiary value of electronic records, reliance has been placed on the judgment of the Supreme Court in the case of Tukaram S.Dighole v. Manikrao Shivaji Kokate as reported in (2010) 4 SCC 329 where the Supreme Court observed that new techniques and devices are the order of the day. Though such devises are susceptible to tampering, no exhaustive Rule could be laid down by which the admission of such evidence may be judged. Standard of proof of its authenticity and accuracy has to be more stringent than other documentary evidence. It is pointed out that Supreme Court in the case of Shafhi Mohammd and others Vs. State of Himachal Pradesh and others as reported in (2018) 5 SCC 311 has held in para 12 as under :-

"Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to

produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies."

55. It is further submitted that no objection was taken at the trial stage in regard to sampling method or authenticity of CCTV footage, and therefore, when no such objection at trial stage has been taken, it cannot be taken at appellate stage as has been held by the Supreme Court in the case of Sonu vs. State of Haryana as reported in (2017) 8 SCC 570. It is also pointed out that evidence of witnesses produced by the prosecution cannot be discarded only on the touchstone of they being from the same community or on the allegation that they are related to each other or come from same town. In this regard, reliance has been placed on the judgment of the Supreme Court in the case of State of UP vs. Krishna Master and others as reported in (2010) 12 SCC 324 wherein in para 8, the Supreme Court has held that while appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly, necessary for the Court to scrutinize 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 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, hyper-technical approach …....would not ordinarily permit rejection of the evidence as a whole. On the same issue, reliance has been placed on the judgment in the case of Babu and others Vs.

State of Tamil Nadu as reported in (2013) 13 SCC 60.

56. It is further submitted by learned counsel for the complainant that statement of the accused recorded under Section 27 of the Evidence Act cannot be discarded lightly because Supreme Court in the case of Selvi and others Vs. State of Karnataka as reported in (2010) 7 SCC 263 has held :-

" Section 27 of the Evidence Act incorporates the theory of confirmation by subsequent facts' - i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those which furnish a link in the chain of evidence' needed for a successful prosecution."

Counsel for the complainant has supplemented the arguments in regard to minor discrepancies and has added that as per the provisions contained in Section 215 of Cr.P.C. no error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be recorded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has occasioned in failure of justice.

57. Learned counsel for the complainant has further submitted that learned senior counsel for the appellant has placed lot of emphasis on 'right to fair trial', placing reliance on articles 22 and 39-A of the Constitution of India to point out that the counsel who was appearing for the accused from Legal Aid was inexperienced. It is submitted that this plea has no grain of truth as can be seen from cross-examination of Babulal Yadav (PW-29). No immature or inexperienced counsel can carry out such a lengthy and

exhaustive cross-examination. Thus, it is not the inexperience of a counsel but lapse at the most not to cross-examine on certain issues which is not sufficient ground to remand the matter.

58. To counter the argument of learned counsel for the appellant that no identification parade was held at the police Station and before the Court during trial, it is submitted that such identification parade was not required inasmuch as in the case of

Raju Manjhi Vs. State of Bihar as reported in (2018) 9 Scale

360 the Supreme Court has held as under :-

"The identification parade belongs to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration [See: Kanta Prashad v. Delhi Administration, 1958 CriLJ 698 and Vaikuntam Chandrappa and Ors v. State of Andhra Pradesh, AIR 1960 SC 1340]. "

Similarly, reliance has been placed on the judgment of the Supreme Court in the case of Harbajan Singh vs. State of Jammu and Kashmir as reported in (1975) 4 SCC 480 wherein it has been held that identification of the accused is not necessary when the evidence are corroborative in nature. Reliance has also been placed on the following judgments:

(a) Malkhansingh and others vs. State of M.P. (2003) 5 SCC 746;
(b) Munshi Singh Gautam (D) and others vs. State of M.P., (2005) 9 SCC 631 and
(c) Motilal Yadav vs. State of Bihar, (2015) 2 SCC 647 etc.

Placing reliance on such judgments, it is submitted that when

there is corroborative evidence and CCTV footage is available, then identification of the accused cannot be faulted inasmuch as there was resemblance in the CCTV footage and the actual physical appearance of the accused through video conferencing.

59. It is also pointed out that Dr. J.P.Goyal (PW-16) tested the accused to be physically and mentally capable of performing sexual intercourse. Scratch marks behind the elbow and another on the backside of right elbow of the accused were found. Dr. Sarthak Juglan (PW-17) had found injuries on the private parts of the deceased and there were overall 19 injuries on the whole body of the victim. He had opined that all injuries are sufficient to cause death individually in the normal course. He further opined that the main cause of death was due to injuries on the face, neck, smothering and throttling. He noted that death of the victim was in the category of murder and there was incidence of physical, forceful and penetrative sexual assault on the body of the deceased. It is pointed out that DNA reports obtained from the samples of the accused did match with the DNA profile of the hair seized from the hand of the deceased (Ex.P/53). Similarly, DNA profile of the accused obtained from his hair sample and blood sample matched with the spots found over the frock, vest, undergarments, vaginal slide and swab, anal slide and swab obtained from the deceased vide (Ex.P/52) and it is submitted that DNA finger printing itself has sufficiently proved the involvement of the accused and even if all other sources of evidence are discarded, then DNA report is sufficient to hold accused guilty of offence. Reliance has been placed on the judgment of the Supreme Court in the case of Kanti Devi and others v. Poshi Ram as reported in (2001) 5 SCC 311. Reliance

has also been placed on the judgment in the case of Pantangi

Balarama Venkata Ganesh and others Vs. State of A.P. and

others as reported in (2009) 14 SCC 607 wherein in para 46

Supreme Court has held as under :-

"Submission of Mr. Sachar that the report of DNA should not be relied upon, cannot be accepted. What is DNA? It means :

"(Deoxyribonucleic Acid), which is found in the chromosomes of the cells of living beings is the blueprint of an individual. DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred percent precise, experts opine."

There cannot be any doubt whatsoever that there is a need of quality control. Precautions are required to be taken to ensure preparation of high- molecular-weight DNA complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control. (See Article of Lalji Singh, Centre for Cellular and Molecular Biology, Hyderabad in DNA Profiling and its applications)"

On similar issue, reliance has also been placed on following judgments:-

(a) Santosh Kumar Singh vs. State thr. CBI (2010) 9 SCC 747 and (b) Dharam Deo Yadav vs. State of U.P. (2014) 5 SCC 509.

60. It is also submitted that objective of POCSO Act is to protect the children from offences of sexual assault, sexual harassment and pornography and provide for the establishment of Special Courts for trial of such offences.

61. It is further submitted that death of the victim was a cold blooded murder and was homicidal in nature. It was brutal in nature and was performed with complete soundness of mind. Such act of the accused for causing several injuries after committing brutal rape and anal intercourse will fall in the category of 'rarest of rare case' of rape and murder of a small girl of 6 years, who was too young to understand the meaning of rape or sexual assault. It is further submitted that if a small girl of 6 years has been put to such agony and has been rested to death, then such case cannot be said to be not falling in the category of 'rarest of rare'. Reliance has been placed on the judgment of the Supreme Court in the case of Supreme Court Women Lawyers Association v. Union of India as reported in (2016) 3 SCC 680 wherein the Supreme Court observed as under :-

"We are disposed to think so as by that age, a child, a glorious gift to mankind, cannot conceive of any kind of carnal desire in man. Once she becomes a victim of such a crime, there is disastrous effect on her mind. The mental agony lasts long. Sorrow and fear haunt forever. There is need to take steps for stopping this kind of child abuse and hence, possibly there is a need for defining the term "child" in the context of rape and thereafter provide for more severe punishment in respect of the culprits who are involved in this type of crime. In the light of the said decision, we part with the suggestion with the fond hope that Parliament would respond to the agony of the collective, for it really deserves consideration."

Reliance has also been placed on the judgment of the Supreme

Court in the case of Justice K.S. Puttaswamy (Retd) Vs. Union

of India and others as reported in (2017) 10 SCC 1. Reliance

has also been placed on the judgment of the Supreme Court in

the case of Machhi Singh v. State of Punjab as reported in

(1983) 3 SCC 470 wherein the Court has discussed the criteria to

decide rarest of rare case. These factors are :-

I. Manner of Commission of Murder

33.When the murder is committed in an extremely brutal, grotesque, diabolical. revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,

(i) When the house of the victim is set aflame with the end in view to roast him alive in the house.

(ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

(iii)When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II Motive for Commission of murder

When the murder is committed for a motive which evince total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (2) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust. (c) a murder is committed in the course for betrayal of the motherland. III Anti Social or Socially abhorrent nature of the crime

III. Magnitude of crime

35.When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

IV Personality of victim of murder

36.When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder. (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons. "

62. Reliance has also been placed on the judgment of the

Supreme Court in the case of Dhananjoy Chaterjee vs. State of

W.B. as reported in (1994) 2 SCC 220 wherein the Supreme

Court has held as under :-

"Justice demands that courts should impose punishment befitting the crime so that the courts 40 CRRFC-08/2018 & CR.A.5950/2018

reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment."

Learned counsel for the complainant has also relied on the

judgment of the Supreme Court in the case of Md. Mannan @

Abdul Mannan Vs. State of Bihar as reported in (2011) 5 SCC

317 wherein the Supreme Court has observed as under :-

"The postmortem report shows various injuries on the face, nails and body of the child. These injuries show the gruesome manner in which she was subjected to rape. The victim of crime is an innocent child who did not provide even an excuse, much less a provocation for murder. Such cruelty towards a young child is appalling. The appellant had stooped so low as to unleash his monstrous self on the innocent, helpless and defenceless child. This act no doubt had invited extreme indignation of the community and shocked the collective conscience of the society. Their expectation from the authority conferred with the power to adjudicate, is to inflict the death sentence which is natural and logical. We are of the opinion that appellant is a menace to the society and shall continue to be so and he can not be reformed. We have no manner of doubt that the case in hand falls in the category of the rarest of the rare cases and the trial court had correctly inflicted the death sentence which had rightly been confirmed by the High Court."

63. Reliance has also been placed on the following judgments

to support judgment of capital punishment:-

(a) Jumman Khan vs. State of UP, (1991) 1 SCC 752;
(b) Laxman Naik vs. State of Orissa, (1994) 3 SCC 381;
(c) Kamta Tiwari vs. State of M.P., (1996) 6 SCC 250;
(d) Molai and Anr. Vs. State of M.P., (1999) 9 SCC 581;
(e) Shivaji @ Dadya Shankar Alhat vs. State of Maharashtra, (2008) 15 SCC 269;
(f) State of UP Vs. Satish, (2005) 3 SCC 114;
(g) Vasant Sampat Dupara Vs. State of Maharashtra, (2015) 1 SCC 253;
(h) Purushottam Dahrath Borate and Anr. Vs. State of Maharashtra, (2015) 6 SCC 652; and
(i) Rajendra Pralhadrao Wasnik v. State of

Maharashtra, (2012) 4 SCC 37.

Lastly, it is argued that there is no matter of doubt that it is accused and accused Jitendra only who was involved in the crime and looking to the nature, manner and intensity of crime, only & only Capital Punishment will meet the ends of justice.

64. The issues which emerge for analysis and judgment from the arguments emanating from rival parties can be summarized as under :-

(i) Whether appellant/accused is a innocent person who has been falsely implicated as has been suggested by learned amicus curiae;

(ii) Whether there is sufficient evidence to hold the accused guilty;

(iii) Whether the facts and circumstances of the case are sufficient to bring it in the category of 'rarest of rare case' so to uphold death sentence or it is a case not fulfilling the test of 'rarest of rare' cases requiring leniency in the matter of sentencing looking to the age and background of the accused.

65. As far as first and second issues are concerned, they are based on certain presumptions, namely

(a) that, picture of the person with whom victim girl is shown to be going in the camera is not clear enough to identify the clothes and face of the accused;

(b) that since the face of the person escorting the victim girl is not clear, therefore, presumption cannot be drawn that same person was returning at 2.47.47; (c) a culprit will not return to the place of the function from where he had allegedly taken the victim;

(d) that certain documents which were prepared prior to lodging of the FIR have been reported to contain crime number which creates a doubt that such documents were manipulated subsequently;

(e) that collection of soil from the shoes is a superfluous act or height of optimism on the part of the prosecution because it is not expected under normal circumstances that same soil will stick to the shoes of the accused even after travelling a substantial distance from the place of incident to the marriage hall and then back to his home.

On these presumptions, it is argued that appellant has been falsely accused so to save close relative of the complainant party. This argument has been further stretched to limit that even samples which were obtained for DNA finger printing have been manipulated by the police in connivance of the complainant party so to save near relative of the complainant party.

66. As far as CCTV footage is concerned, it is a substantive piece of evidence. In the case of Tukaram S.Dighole (supra) the Supreme Court has observed that new techniques and devices are the order of the day. Though such devises are susceptible to tampering, no exhaustive Rule could be laid down by which the admission of such evidence may be judged. In Tomaso Bruno and Anr. Vs. State of UP as reported in (2015) 7 SCC 178 a Three Judge Bench has observed that advancement of information technology and scientific temper must pervade the method of investigation. Reference was made to the decision of Supreme Court in the case of Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid (supra). In this context, crossexamination of PW-8 and PW-9, namely Akash Sahrma and Pratnesh Aathale, attains importance. In cross-examination of Akash Sharma (PW-8) when asked about tampering with the hard disk, he categorically replied that if any attempt to tamper with the hard disk is made, then such hard disk shall get corrupted. He

admitted that he had given certification Ex.P/21 and when he had downloaded CCTV footage, then nobody had tampered with DVR. Similarly, Pratnesh Aathale (PW-9) in para 7 of his crossexamination has admitted that there was no tampering with the footage. If any attempt would have been made to tamper with the footage, then whole data would have gone corrupted. There is no further suggestion or any cross-examination to point out that there was any tampering in the CCTV footage. Therefore, keeping in view the judgments of Hon'ble Supreme Court, use of technology cannot be rejected merely because there is a general presumption that such electronic evidence is liable to be corrupted.

67. In fact, Dr. Rahul Yadav (PW-18), from whose residence such recording was downloaded by Akash Sharma (PW-8) and Pratnesh Aathale (PW-9), denied suggestion that he had tampered with the hard disk between 21.6.18 to 23.6.18 though hard disk was not seized till 23.6.18.

68. As far as identification of the accused is concerned, accused in his statement under Section 313 of Cr.P.C. has admitted that he was taken for sexual potency examination and he had given consent for such examination while answering question Nos.225 and 226. Similarly, while giving reply to question No.450 that Dr. Sudha Iyangar had taken his blood sample and and it was seized from Sudha Iyangar and on such seizure memo (Ex.P/14) he had put his signatures from 'B' to 'B' part, he answered in affirmative. Similarly, he admitted that seizure memo (Ex.P/44) contains his signatures while answering question No.451 and also admitted that search Panchnama of his house Ex.P/49 was prepared which contains his signatures from

'A' to 'A' part while giving reply to question No.452 and further admitted while replying to question No.453 that in spot Panchnama (Ex.P/45) his signatures are there from 'C' to 'C' part. It is also important that while giving his statement under Section 313 of Cr.P.C. the accused had taken a plea while answering question No.106 that Balveersingh Kaurav (PW-7) had seized his blood sample in front of Dr. Sudha Iyangar. Similarly, in answer to question No.331 accused admitted seizure of brown (Katthai) coloured T-shirt and a navy blue coloured underwear. Further in reply to question No.104 when he was asked that he is the same person who has been shown in the CCTV recording of Dr. Rahul Yadav taking the girl in night, accused denied this and submitted that on that day he had gone to Dabra, but there is no attempt on the part of the accused to substantiate this alibi of not being present on the fateful day and being away to Dabra. In reply to question No.482 as to why prosecution witnesses are deposing against him, he admitted that police had caught hold of him, got his medical conducted, his blood sample was obtained, but he is not aware as to why they are deposing against him, then stated that he is putting up a cart of snow balls and since police personnel asked for money and he has refused to give money, therefore, he has been falsely accused. When he was asked whether he wants to give any evidence in defence, he refused to give any evidence in defence. This chronology of events and the FSL report on DNA finger printing vide Ex.P/52 and Ex.P/53, wherein it has been categorically reported that features of DNA strains of the accused matched with the material seized from the scene of crime, namely hair, stains on the clothes of the deceased, so also vaginal and anal slides and swabs prepared

from the victim matched with DNA profile of the accused and there is no effective cross-examination on Babulal Yadav (PW-29) IO of the case or Dr. Anil Singh (PW-31) Scientific Officer and Assistant Chemical Examiner, Govt. of M.P. State Forensic Science Laboratory, Sagar, to belie such reports, when such reports categorically point out that male Y chromosome obtained from the underwear of the victim, Ex.B, has same STR DNA profile as obtained from source of the accused Ex.A, DNA profile of male Y Chromosome obtained from Ex.D, E and F, namely frock, vest (Baniyan), vaginal slide and swab and anal slide and swab respectively, matched from Y chromosome STR DNA profile obtained from source Ex.A of the accused and the hair which was seized from the hands of the deceased Ex.C contains same DNA profile as was available in the source material obtained from the accused namely Ex.A and it was also found that seized underwear, T-shirt, pant (Ex.G) contain similar female DNA profile as was obtained from the source of the deceased, namely B/R 6197 on the basis of which Dr. Anil Singh (PW-31) opined that deceased was subjected to vaginal and anal sex, and there is no substantial or relevant cross-examination of this vital witness of prosecution Dr. Anil Singh (PW-31), the plea of learned counsel for the accused that accused has been falsely implicated to save somebody else, who is a close relative of the family of the complainant, is not borne out. In a case of this dimension what is to be seen is that whether chain of circumstances is complete or not. It is not in dispute that the girl as has been shown in CCTV footage following a person is daughter of the complainant Radhakrishan Yadav (PW-1) and Smt. Vandana Yadav (PW-2). It is also not in dispute that they had rightly identified their daughter

who was found dead in the bushes. There is virtual evidence of accused taking the girl from the said community hall on the road leading towards the small hillocks where dead-body was found. There is also virtual evidence of CCTV footage showing accused coming alone from the said path, then first requirement of last seen is proved beyond doubt and when this evidence of last seen is connected with the FSL report, chain of events gets completed. At this point of time, arguments advanced on behalf of learned counsel for the accused/appellant that he has not been properly identified and no TIP was carried out is concerned, there is no eye-witness to the incident. There is evidence in the form of CCTV footage where family members have seen their daughter being escorted by the accused. Now the same person whose image has been seen on CCTV footage has been identified through video conferencing. Therefore, failure to not keep the accused present neither caused any hindrance on account of there being no TIP prior to video conferencing nor it can be said that it caused any hindrance to the counsel from seeking instructions. In fact, in the light of the law laid down in the case of Sonu (supra) when counsel never objected to this fact that he has been put to a handicap due to absence of the accused, such plea is not permissible at the appellate stage. In fact, in the case of Balbir (supra) the ratio of law is that since witnesses do not have sufficient opportunity to see the faces of the accused, then failure to hold TIP is a serious lapse, but in the present case, nobody had physically seen the accused. He was viewed virtually on CCTV footage and identified virtually through video conferencing. As has been discussed earlier, the identity of the daughter and the person carrying her is important. Accused has

been identified as the same person who escorted the victim/deceased and who came back alone. Another argument that inconsistency leads to improbabilities and witnesses are related has been answered by Hon'ble Supreme Court recently in the case of Prabhudayal Vs. State of Rajasthan as reported in (2018) 8 SCC 127 wherein the ratio is that contradictions, inconsistencies, exaggerations or embellishments if minor in nature are not fatal to the case of the prosecution and they do not merit rejection of evidence as a whole. Court can separate truth from false statements in witnesses' testimony.

69. As far as contention of learned amicus curiae that appellant has been planted to save some actual culprit is concerned, as per the FSL report Ex.P/52, it is Ex.C, which is hair recovered from the spot from the fingers of the deceased and as per State Forensic Science Laboratory it was marked as B/R-5962. In fact, this hair was examined vide Ex.P/53 and the DNA profile of this hair, Ex.C, which was seized from the hands of the deceased, matched with the DNA profile obtained from the blood of the appellant, viz., Ex.A (B/R-5960) and the DNA profile obtained from the nails of the appellant, namely Ex.H (B/R-5967), therefore, it leaves no iota of doubt that sample which was obtained from the appellant and which appellant admitted to have given in his statements under Section 313 of Cr.P.C., matches with the DNA profile of the material i.e. hair which was seized from the hands of the deceased vide Ex.P/8. Further it was for the defence counsel to have pointed out that whom he was suspecting to be the real culprit as video footage was available to the defence counsel and he could have moved an appropriate application for DNA examination of such person but no such effort

has been made during trial, nor there is any allegation that who has been replaced by the present appellant. In view of such material, on record, this Court holds that argument put forth by learned amicus curiae that appellant has been planted to save some actual culprit is not made out and it deserves to be and is rejected. Therefore, issues No.1 and 2 that accused has been falsely implicated have to be decided and are decided against the accused.

70. As far as third argument of the accused is concerned, in the case of Machchi Singh (supra) Hon'ble Supreme Court observed that while deciding 'rarest of rare' cases certain factors should be considered. These factors have been reproduced at para 61. When tested on the anvil of factors enumerated by Hon'ble Supreme Court, then it is apparent that murder has been committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner with a six years old girl not understanding the meaning of rape and yet not bloomed to the adolescence to understand various facets of this carnal aspect of life due to the brutal act of the accused. Motive evinces total depravity and meanness and magnitude being so high that it belies all mitigating circumstances and personality of the victim being an innocent child who could not have or has not provided even an excuse much less a provocation for murder and where the victim is admittedly a person vis-a-vis whom the murderer is in a position of domination or trust, it is sufficient to hold that present case will fall within the four corners of 'rarest of rare' case. In fact, Hon'ble Supreme Court in the case of Mukesh and another Vs. State (NCT of Delhi) and others as reported in (2017) 6 SCC 1 has held that factors like poverty, young age, dependents,

absence of criminal antecedents, post crime remorse and good conduct in the person cannot be taken as mitigating circumstances to take the case out from the category of rarest of rare case. In fact, it may be true that crimes of such dimension may be due to mad mental outlook of man, depravity or pathological and psychological state of mind and as per sociological studies on analysis of men who committed crimes against women, shows, that these men are often ones who suffered from lack of self esteem or low self esteem, depression or complexity. Their lack of resources, skills may have a psychopathic personality and they may have been victim of violence in childhood, and therefore, such persons with personality disorder find helpless women and children, powerless persons, as their source of fulfilling, unfulfilled desires and to show to the society that they are the symbols of manhood. In fact cool demeanour of the accused while coming back showing no signs of remorse or introspection leaves to us no manner of doubt that perversity may be beyond reformation.

71. We are constantly reminded of the fact that certain slips in the prosecution case or overlooking of facts will not render the prosecution story a waste paper unless and until cogent material to support halfhearted alibi of the accused that he was not present at the scene of crime and was in fact at Dabra on the fateful day is brought before the Court. In fact, as has been noted by Hon'ble Supreme Court in the case of Mukesh (supra) quoting another judgment of Supreme Court in the case of Purushottam Dashrath Borate & Anr vs State Of Maharashtra as reported in (2015) 6 SCC 652, the age of the accused or family background of the accused or lack of criminal antecedents cannot

be said to be the mitigating circumstances. It cannot also be considered as mitigating circumstances particularly taking into consideration the nature of heinous offence, cold and calculated manner in which it was committed by the accused persons. In para 516, it has been held that there is reasonable expectation of the society that deterrent punishment commensurate with the gravity of the offence be awarded. When the crime is brutal, shocking the collective conscience of the community, sympathy in any form would be misplaced and it would shake the confidence of public in the administration of criminal justice system. In the case of Om Prakash v. State of Haryana as reported in (1999) 3 SCC 19 it has been held that the Court must respond to the cry of the society and to settle what would be a deterrent punishment for what was an apparently abominable crime. In fact, Justice A.P. Sen, Former Judge of the Supreme Court, in the case of Rajendra Prasad Vs. State of UP as reported in (1979) 3 SCC 646, had also taken a view that "humanistic approach should not obscure our sense of reality" because Judges are interpreters of law, not makers of it, therefore, in the name of humanistic approach or an appeal to the conscience or in the name of media trial, we cannot obscure our sensibility of reality. This view has been affirmed in the case of Om Prakash (supra) and Mukesh (supra).

72. In fact, the appellant was asked as to whether he would like to lead any defence evidence. He did not chose to lead any such evidence. In fact, the child rights includes right to survival, to life, health, nutrition, name, nationality. It also includes right to development, to education, care, leisure, recreation and cultural activities. It also has right to protection from exploitation, abuse

and neglect. These rights of a child, namely, right to survival, right to development, right to protection have been untimely curtailed by the accused, thus having a direct bearing on the fundamental right to life as enshrined in Article 21 of the Constitution.

73. Merely looking at the young age of the accused, it cannot be presumed that there is a possibility of reform. A person suffering from such acute psychopathic condition has acted so brutally on a minor of six years of age who was not even in a position of exercising her right of private defence, what to talk of right to dignity against exploitation.

74. An attempt has been made by learned senior counsel for the appellant to point out that it is not a case of direct murder fulfilling the requirements of Section 300 of IPC but at the most it is a case of attempt to outraging the modesty of a minor girl and since there was no intention of causing death and there was no premeditation, therefore, his case will fall under exception 4 given below Section 300 of IPC. In fact, report of Dr. Sarthak Juglani (PW-17) and that of Dr. Anil Singh (PW-31) clearly points that the act committed by the appellant will not only fall under Section 376(A)(B), but also under second, third and forth ingredients of Section 300 of IPC, they are :-

"2ndly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death,or-4thly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."

In view whereof, in our considered opinion, the crime committed by the accused will come under the definition of a death caused by doing an act with the intention of causing such bodily injury as is likely to cause death, and therefore, all the essential ingredients of Section 300 of IPC are made out besides that of Section 376(A)(B) of IPC, therefore, we are of the opinion that the punishment which has been awarded by the learned Additional Sessions Judge/Special Judge does not call for any interference, as all the elements of crime constituting the offence under Sections 363, 366, 376(A)(B) and 302 of IPC are available and such gruesome cold blooded act of the accused cannot be overlooked at the cost of shaking the conscience of the society merely in the name and hope of some transformation on a future date in the accused/appellant.

75. There is no precise mathematical formula available with the Judges while deciding a rarest of rare case, but at the same time Supreme Court in the case of Mukesh (Supra) has referred to the case of Bachan Singh (supra) and has held in para 343 as under :-

"209....It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."

In the case of Kamta Tiwari vs. State of M.P. as reported in (1996) 6 SCC 250 where the appellant was convicted for the

offence punishable under Sections 363, 376, 302 and 201 of IPC, the Supreme Court referring to the propositions culled out in

Machhi Singh (supra) expressed thus :-

"8.Taking an overall view of all the facts and circumstances of the instant case in the light of the above propositions we are of the firm opinion that the sentence of death should be maintained. In vain we have searched for mitigating circumstances — but found aggravating circumstances aplenty. The evidence on record clearly establishes that the appellant was close to the family of Parmeshwar and the deceased and her siblings used to call him 'Tiwari Uncle'. Obviously her closeness with the appellant encouraged her to go to his shop, which was near the saloon where she had gone for a haircut with her father and brother, and ask for some biscuits. The appellant readily responded to the request by taking her to the nearby grocery shop of Budhsen and handing over a packet of biscuits apparently as a prelude to his sinister design which unfolded in her kidnapping, brutal rape and gruesome murder — as the numerous injuries on her person testify; and the finale was the dumping of her dead body in a well. When an innocent hapless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a "rarest of rare" cases where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society's abhorrence of such crimes."

Similarly, in the case of State of Punjab v. Gurmit Singh as reported in (1996) 2 SCC 384 in para 21 the Supreme Court has held as under :-

"21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy

and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case" [Emphasis supplied]

76. In view of such facts, the argument that it is not a rarest of rare case inviting capital punishment has no force. It is evident that Courts are required to balance aggravating and mitigating factors, but the fact is that the greatest weight is to be awarded to the brutality of the crime. It is also true as has been noted in the case of Bachan Singh that "judges should not take upon themselves the responsibility of becoming oracles or spokesmen of public opinion. When Judges take upon themselves the responsibility of setting down social norms of conduct, there is every danger, despite their effort to make a rational guess of the notions of right and wrong prevailing in the community at large …..that they might write their own peculiar view or personal predilection into the law, sincerely mistaking that changeling for what they perceive to be the Community ethic. The perception of 'community' standards or ethics may vary from Judge to Judge. …..Judges have no divining rod to divine accurately the will of the people."

77. We are conscious of this fact, but at the same time, cannot shrug our responsibility to balance the mitigating and aggravating circumstances and decide as to what as per law should be the

appropriate quantum of sentence under the given facts and circumstances of the case. When it has been proved beyond doubt that a child was not only a victim but was a helpless spectator to the carnal desires of the accused and had no source of strength even to stand in self defence and presumably lured from the community hall to an isolated place for not only violating the privacy of body and soul but also laying it to rest, aggravating circumstances far outweigh the mitigating circumstances.

78. Thus, in the light of the evidence and judgments referred to hereinabove, we do not find any mitigating circumstances in favour of the appellant who has not only brutalized the body of a girl child of six years but also her trust and chastity.

79. In fact, the vulnerability of the victim, the enormity of the crime, motivation of the accused and the execution of the crime leaves no matter of doubt to us to hold this to be a 'rarest of rare case.'

80. Accused has also violated her fundamental right to life, right to dignity and right to protection and it being an act of extreme depravity sending shock waves in the society, this Court would like to be guided by the words of Justice A.P.Sen in the case of Rajendra Prasad (supra) and has no moral compulsion or conviction to oppose the death penalty taking into view the totality of the circumstances.

81. Therefore, we find that capital punishment awarded to the appellant is warranted as the present case is one of the 'rarest of rare' cases.

82. In view of the foregoing reasons, we affirm the death sentence awarded to the appellant by the trial Court while dismissing the appeal preferred by the accused against his

conviction and sentence.

83. We place on record our appreciation for the able assistance rendered by respective counsel; more particularly learned senior counsel who at the request of the Court and despite his professional preoccupation readily agreed to render legal aid. As a token of his service for advancement of cause of effective legal aid, we direct the State Legal Service Authority to pay Rs.10,000/- (Rs. Ten Thousand Only) as an honorarium to him.

Let a copy of this judgment be retained in the file of concerned criminal appeal. Office is further directed to send a copy of the judgment forthwith to the jail authorities for its delivery on the accused and a copy to the trial Court for taking appropriate action in accordance with law.

Judge Judge

(Sanjay Yadav) (Vivek Agarwal)

SP/ms/-

MADHU SOODAN PRASAD 2018.10.26 13:37:54 +05'30'

The State Of Madhya Pradesh vs. Jitendra Kushwah

AI Summary

Order Issued After Hearing

Order Text

High Court of Madhya Pradesh Bench at Gwalior

DIVISION BENCH : Hon.Shri Justice Sanjay Yadav & Hon.Shri Justice Vivek Agarwal

Criminal Reference No.08/2018 (Death Reference)

In reference

Criminal Appeal No.5950/2018

J U D G M E N T (Delivered on this 25th day of October 2018)

Per Justice Vivek Agarwal :

Allahabad High Court in the case of Ramawadh Vs. State of

Balarama Venkata Ganesh and others Vs. State of A.P. and

(a) Santosh Kumar Singh vs. State thr. CBI (2010) 9 SCC 747 and (b) Dharam Deo Yadav vs. State of U.P. (2014) 5 SCC 509.

Maharashtra, (2012) 4 SCC 37.

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