Deepak @ Nanhu Kirar And Ors vs State Of Madhya Pradesh

Serial No.,"Conviction under

Section",Sentence,Fine imposed,"Imprisonment in default of

payment of Fine amount

01.,363 of IPC,R.I of Three years,Rs.200/-,Three months

02.,366 of IPC,R.I. of Five years,Rs.300/-,Six months

03.,201 of IPC,R.I. of Seven years,Rs.400/-,One year

04.,376AB of IPC,Life Imprisonment,Rs.500/-,Two years

05.,302 of IPC,Capital Punishment,Rs.500/-,Two years

06.,"5(m) r/w Sec.6 of

POCSO Act,2012","No separate sentence is

imposed as higher sentence

under the IPC has already

been imposed.",-,-

Ex.P/50 based on the X-ray plate (Ex.P/15 To Ex.P/53). Dr.Shivendra Singh Chandel (P.W.26) conducted the test of appellant and prepared the,,,,

report Ex.P/54. The vaginal slide of victim Article-R, clothes: ""Lahanga-Choli"" Article A, piece of heart Article-T, ligature material Article-U, two anal",,,,

slide discharge Article-V, knot of Chunri Article-Z, ligature material, ""Chunri"" of hand Article-Z-2, hairs of head Article-Z-3, underwear of victim",,,,

Article-Q, semen slide Article-W, pubic hair of appellant Article-X, snare slide Article-Y and salt mixture Article-S, were deposited before Forensic",,,,

Laboratory (FSL) Sagar through memorandum of Superintendent of Police, Hoshangabad Ex.P/66 and Ex.P/67 and receipt thereof Ex.P/68 and P/69",,,,

were received. The FSL report was marked as Ex.P/70. After investigation, charge sheet was filed in the court of IInd Addl. Sessions Judge. In turn,",,,,

Sessions Judge, Hoshangabad by order dated 30.11.2018 handed over the matter to the court below.",,,,

The appellant abjured the guilt and prayed for full fledged trial. The prosecution introduced 29 witnesses, documents from Ex.P/1 to Ex.P/85 and",,,,

articles from Article-A to Article-Z-3 and Article-K to Article-K-9. The main defence of the appellant before the court below was that he was at,,,,

Burhanpur in his uncle's house pursuant to an externment order passed by the competent authority. The appellant has been falsely implicated.,,,,

However, in support of this stand, no defence witness has entered the witness box.",,,,

The court below opined that there is no eye witness to the incident of rape. However, there are ten circumstances which make it clear that",,,,

appellant is guilty of the offence alleged against him. Thus, charges against the appellant under section 363, 366, 376AB, 302, 201 of IPC and section",,,,

5(m) and section 6 of the POCSO Act were found to be proved. The court below after hearing the parties on the question of quantum of punishment,,,,

opined that the case falls within the ambit of ""rarest of the rare cases"" and, therefore, imposed death punishment and other penalties mentioned in",,,,

para-1 of this judgment.,,,,

Argument of appellant :,,,,

Shri Shreyas Pandit, learned counsel for the appellant criticized the judgment by contending that the appellant is falsely implicated. The appellant",,,,

was at Burhanpur because of an externment order passed by the District Magistrate. As per the statement of prosecution witnesses, the photograph",,,,

of appellant was circulated through Whatsapp/ mobile since 31. 10.2018. The photograph must have been circulated by the police. Reliance is placed,,,,

on the statement of Santosh Chourasiya (P.W.5) and Brijesh Chourasiya (P.W.6) who have admitted that photograph of appellant was circulated,,,,

through Whatsapp on 01.11.2008 and 31. 10.2018. The appellant was arrested on the presumption based on his past record. There is no clinching,,,,

evidence which connects the appellant with commission of crime. The findings given by the court below are based on conjectures and surmises.,,,,

By taking this court to the statement of Lakhan Chourasiya (P.W.1) based on CCTV footage, it is urged that he identified his daughter because of",,,,

the clothes she was wearing. He clearly admitted that in the CCTV footage, the face of accused and victim were not clear. The bicycle number and",,,,

name of the shop which issued the bicycle were also not visible. Mono on the bicycle is not visible as per CCTV footage but as per Article-C,,,,

produced in the court, there exists a mono of manufacturer on the front mud-guard of the cycle. Hence, this statement does not support the",,,,

prosecution story at all. It is strenuously contended by learned counsel for the appellant that Nihal Chourasiya (P.W.3) is a child witness aged about,,,,

six years. He is the sole eye witness who had allegedly seen the accused taking her sister on a bicycle. The statement of this witness is not,,,,

trustworthy because he deposed that on the date of incident, his father came home at night whereas his father Lakhan (P.W.1) deposed that at the",,,,

time of kidnapping of victim, he was on the dinning table of his house. The child witness deposed that the appellant told the victim that he will take her",,,,

to her father's shop. By giving this assurance, he took the victim with him whereas as per prosecution story some toy and chocolate etc. were used to",,,,

lure the victim. Heavy reliance is placed on the cross-examination wherein this child witness specifically admitted that he had seen the appellant for,,,,

the first time in police station after his arrest and thereafter he is seeing him in the court for the first time. Shri Pandit urged that in between a Test,,,,

Identification Parade (TIP) was conducted but this witness, who as per prosecution story identified the appellant in TIP, did not depose about TIP at",,,,

all which makes his statement totally untrustworthy. Reliance is placed on 1977(1) SCC 707 (Caetano Piedade Fernandes and Another Vs. Union,,,,

Territory of Goa, Daman and Diu Panaji, Goa and 1970 (2) SCC 128 (Budhsen and another Vs. State of U.P..) It is contended that this witness in no",,,,

uncertain terms admitted that Brijesh Bhaiya (P.W.6) asked him to depose in the court that the accused person present in the court is the person who,,,,

had taken the victim on the date of incident. He deposed as per the instructions issued by P.W.6 and, therefore, this statement is of no assistance to",,,,

the prosecution.,,,,

The next contention is that Naib Tehsildar (P.W.4) conducted the TIP and deposed that four persons of similar height and health were introduced,,,,

for the purpose of TIP. The number of persons used in the TIP were insufficient. Reliance was placed on the judgment of Budhsen (supra) wherein it,,,,

was held that the number of persons mixed-up with the accused should be reasonably large and their general appearance should not be glaringly,,,,

dissimilar. Four persons, as per Shri Pandit, cannot be treated to be reasonably large in number and, therefore, TIP is vitiated.",,,,

The statement of Santosh Chourasia (P.W.5) was criticized by stating that this witness does not help the prosecution at all. This witness, on the",,,,

one hand deposed that he had seen the appellant for the first time on 04.11.2018 and on the other hand, stated that photograph of this person was",,,,

being circulated through mobile phone since 01.11.2018. He further admitted that it was presumed by many that appellant is the real accused person,,,,

who has committed the crime. This witness further admitted that body was recovered from an open place. This witness had also seen the CCTV,,,,

footage and admitted that face of accused person in the said footage is not clear. The child witness Nihal (P.W.3) was not present at the time of,,,,

recovery of dead body near Jhoolapur. Thus, contention of learned counsel for the appellant is that it is not safe to accept the statement of this",,,,

witness. Although, it was admitted that this witness has categorically stated that blood sample of appellant was taken by the doctor in his presence and",,,,

he had put his signature on the relevant memo.,,,,

The statement of Brajesh Chourasia (PW/6) was also referred to show that the photo of appellant was circulated through cellphone on 31.,,,,

10.2018 itself. The face of the victim was not clear when body was taken out of ‘Besharam bush’. As per this witness, at the time of recovery",,,,

of dead body, the appellant was present. His face was covered by police by a black mask. Similarly, statement of Jagdish Sarathe (PW/7) was relied",,,,

upon to contend that this witness had allegedly seen the CCTV footage. This witness deposed that Kanhaiya (PW/11) identified the cycle from CCTV,,,,

footage and stated that this cycle was given to Deepak Kirar on rent. During cross examination, PW/7 also admitted that the photograph of appellant",,,,

was circulated through mobile phone on 31.10.2018 and he had seen the photograph on the said date itself. As per the CD prepared through CCTV,,,,

footage, the face of appellant is not clear. It is correct that the appellant’s photograph was available in the Police Station Pipariya because he was",,,,

subjected to externment. He also admitted that on the basis of this photograph, the police circulated his photo through Whatsapp. Kanhaiya (PW/11)",,,,

did not inform the police that in the CCTV footage, cycle was being driven by Deepak Kirar until he was arrested by police. However, on 03.11.2018,",,,,

Kanhaiya (PW/11) informed the police that Deepak Kirar had taken his one cycle on rent. After perusing Article D, the register which contains entry",,,,

of issuance of cycle by Kanhaiya, this witness stated that upto 03.11.2018, there is no entry about taking the cycle on rent. He could not state with",,,,

certainty that on 30.10.2018, the cycle was not taken by the appellant from Kanhaiya on rent. Kanhaiya alone can clarify this aspect. There is an",,,,

overwriting in Article D (cycle issuance register) about the cycle number.,,,,

The statement of Prem Chourasia (PW/8) is not creditworthy, is another limb of argument of Shri Shreyas Pandit. This witness also admitted that",,,,

the face of appellant in the CCTV footage is not clear and dead body of victim was recovered from an open place. Much emphasis is laid on the,,,,

statement of Kanhaiya (PW/11). Shri Pandit argued that as per prosecution story, it was Kanhaiya, who identified the appellant while seeing the",,,,

CCTV footage. However, it is noteworthy that this witness admitted that he identified the appellant by noticing that cycle driven by accused person is",,,,

the cycle given by him on rent. He identified the accused because of the cycle. The cycle No.7 was mentioned in the identification memo. However,",,,,

he pleaded ignorance why details of identification are not mentioned in identification memo (Ex.P/19). He further admitted that in Article D at page,,,,

No.39, the cycle No.6 is scored out by making it cycle No.7. He clarified that since the cycle No.6 was not in a proper condition, cycle No.7 was",,,,

given to the appellant on rent. This witness deposed that in Article D, there is no entry of person, who took the cycle on rent between 31.10.2018 to",,,,

03.11.2018. It was clarified by stating that on 01.11.2018, the police took the register (Article D) from his shop because of which no entry thereafter",,,,

could be made. On 01.11.2018, when Article D was seized from his shop, the police obtained his signature.",,,,

Shri Pandit, learned counsel for the appellant by taking this Court to the cross examination of this witness urged that the police did not prepare a",,,,

seizure memo on 01.11.2018, the date on which register was seized. Later on, in the Police Station, cycle No.7’s seizure memo was prepared.",,,,

The police recorded his statement on more than one occasion and he was made to sign the statements again and again. Thus, the argument of Shri",,,,

Pandit is that the story of prosecution cannot be believed that the appellant was identified by identifying the cycle when admittedly, the name of",,,,

manufacturer, its logo/mono and cycle number were not visible in CCTV footage. Thus, these witnesses who have deposed on the basis of CCTV",,,,

footage are not trustworthy. The same is the stand regarding Rooplal Uike (PW/12), who had conducted the preliminary investigation. This witness",,,,

also deposed that Kanhaiya identified the appellant on the basis of cycle. The cycle had double rods. This witness admitted that the face of victim and,,,,

appellant were not clear in the CCTV footage. The contention of appellant is that identification through CCTV footage is not worthy of credence.,,,,

Further more, the statement of Naresh Kumar Malik (PW/15) is relied upon to submit that this Constable deposed that he left the Police Station,",,,,

Pipariya with Police Station Incharge. The information memo (Ex.P/40) was signed by him and another Constable Vinod because at that point of time,",,,,

both of them were present in the Police Station, Dolaria. No entry was made regarding this witness in the relevant register of Police Station Dolaria. It",,,,

is further deposed that in the information memo (Ex.P/40), it is not mentioned that the appellant had committed rape with victim and thrown her body",,,,

in the bush of ‘Besharam’. He pleaded ignorance as to why this information is not mentioned in Ex.P/40. On 04.11.2018 the appellant arrested.,,,,

Shri Pandit has taken pains to criticize the deposition of Yogendra Patel (PW/18), who had conducted the videography of place of incident. It is",,,,

stated by this witness that the photography and videography etc. were done through Digital Cameras. In the said camera, the date and time come",,,,

automatically. However, in the photographs deposited in the Court, no date and time mentioned. It is urged that although this witness stated that date",,,,

and time remains in the camera and not on the printout of the photograph, nothing prevented this witness to take such photograph, which contained",,,,

date and time. This witness clearly admitted that original DVD of videography is still with him but he had deleted the photographs from the Digital,,,,

Camera. Since there is no date in the certificate (Ex.P/42), this certificate is of no assistance to the prosecution.",,,,

The statement of Prabhudayal Chourasia (PW/19), the owner of RCC Agency was referred to contend that Kanhaiya allegedly identified the",,,,

appellant through CCTV footage, which story because of the arguments advanced above is not trustworthy. Similarly, the statement of Mahendra",,,,

Singh Rajput (PW/21) was referred to submit that identification of appellant is also not far from ambiguity. This witness admitted that in his Village,,,,

Panchayat, the name of accused person is mentioned as Deepak Patel, although he improved his statement by contending that ‘Kirar’ and",,,,

‘Patel’ belong to same caste. This witness also deposed that Ex.P/32 was not written in his own handwriting.,,,,

The I.O’s statement (PW/28) was relied upon in support of contention that in order to attract the victim, the appellant alleged used the toy",,,,

‘spin finger’ and ‘toy cards’, which were recovered from his house through Article L-1, L-6 and (Article M). The seizure memo is",,,,

Ex.P/31 and the purse of appellant is marked as Article N. Reverting back to the statement of brother of victim (PW/3), it is argued that this story",,,,

developed by I.O. is like a house of cards because solitary eye witness of kidnapping (PW/3) nowhere deposed that the victim was lured by said,,,,

‘spin finger’ or ‘toy cards’. The attention of this Court was drawn by stating that this statement is also not free from discrepancies. In the,,,,

marg"" intimation report (Ex.P/18), crime number is not mentioned. The argument is that the statement of this witness creates a doubt about its",,,,

correctness because he admitted that investigation was entrusted to him on 04.11.2018 and hence there was no occasion for him to proceed on,,,,

02.11.2018 to arrest the appellant. Although this witness stated that a doubt was already created about present appellant and, therefore, he proceeded",,,,

on 02.11.2018, this statement of the said witness does not inspire confidence.",,,,

Shri Pandit urged that the doubt was created on Deepak Kirar because of his criminal antecedents. However, this witness admitted that there are",,,,

other accused persons, whose records were available in Police Station Pipariya, who were allegedly involved in the kidnapping of children, the police",,,,

not raised any doubt about anybody else. Since Deepak Kirar was not traceable, the doubt was created against him only. This statement was criticized",,,,

by contending that the appellant was allegedly arrested near a barrier but the barrier’s owner/operator was not made witness in the present,,,,

matter. This witness also admitted that in certain portion of cycle issuance register (Article D), there exists overwriting.",,,,

The next argument is based on Section 53A of Cr.P.C., which as per Shri Pandit provides the method of examination of accused person of rape",,,,

by medical practitioner. It is urged that Sub-section (4) of Section 53-A is grossly violated because there is no mention of exact time of,,,,

commencement and completion of examination in the report. In addition, learned counsel for the appellant placed reliance on the statement of Dr.",,,,

Sunil Jain (PW/24) wherein a note is appended by the Court below in the examination in chief portion of this witness. It is urged that the blood sample,,,,

of appellant for DNA test was taken in test tubes by this witness. However, the original copy of relevant memo showing taking of blood sample was",,,,

not produced before the Court below and, therefore, the Court did not permit the prosecution to introduce the photocopy of this document.",,,,

Shri Pandit submits that although DNA report is clearly against the appellant, it is founded upon collection of blood from the appellant, which is not",,,,

proved. Hence, DNA report has lost its significance.",,,,

In nutshell, the argument of Shri Pandit is that the statements of prosecution witnesses are not trustworthy. The DNA report also cannot be relied",,,,

upon because the collection of blood sample for DNA test from the appellant could not be established. All the prosecution witnesses have admitted,,,,

that from CCTV footage, neither the face of victim nor of appellant could be clearly identified. Hence, it is not safe to hold the appellant as guilty. The",,,,

appellant is entitled to get benefit of doubt. So far criminal record of appellant is concerned, it is urged that this is settled principle of criminal",,,,

jurisprudence that mere pendency of cases against the accused is not sufficient unless the appellant is held guilty in certain cases. He must be,,,,

presumed to be an innocent person.,,,,

Regarding sentence,,,,

Shri Pandit submits that indisputably, the conviction of appellant is based on circumstantial evidence. As per (2007) 12 SCC 230 (Aloke Nath",,,,

Dutta vs. State of W.B.), it is not safe to affirm capital punishment because the present appellant was convicted solely on the basis of circumstantial",,,,

evidence. The ""last seen"" evidence is based on the statement of child witness, which is not free from doubt. Similarly, CCTV footage cannot be a",,,,

ground to hold the appellant as guilty. More so, when common string as per prosecution witness's deposition is that the face of appellant could not be",,,,

identified as per said footage. The sentence imposed is extremely disproportionate and unwarranted. Reliance is placed on (2007) 12 SCC 288,,,,

(Swamy Shraddananda vs. State of Karnataka) ,(2008) 13 SCC 767 (Swamy Shraddananda (2) vs. State of Karnataka),( 2019) 8 SCC 371 (Sachin",,,,

Kumar Singhraha vs. State of M.P.) and (2019) 8 SCC 382 (Parsuram vs. State of M.P.).,,,,

Argument of the Govt. counsel :,,,,

Per contra, learned government counsel supported the impugned judgment. It is urged that the statement of Nihal (PW/3) is trustworthy. Kanhaiya",,,,

(PW/11) clearly stated that he could identify the cycle from CCTV footage because the name of shop i.e. Durga Cycle and number of cycle was,,,,

mentioned. The mother of victim (PW/2) identified the victim by clothes she was wearing at that time. TIP was conducted by independent officer,,,,

namely Naib Tehsildar (PW/4). There is no reason to disbelieve the TIP when the appellant in his statement recorded under Section 313 of Cr.P.C.,,,,

admitted that such TIP was indeed conducted. The collection of blood sample and dispatch to FSL was duly established. No amount of cross,,,,

examination was done on the doctor, who conducted the necessary medical tests and prepared the DNA report. The other doctors, who conducted",,,,

post mortem and medical test of appellant were also not subjected to any such cross examination, which makes their statements unbelievable. The",,,,

DNA report is based on a scientific analysis and is treated to be conclusive in nature as per judgment of Supreme Court reported in (2005) 5 SCC 194,,,,

(Kamalanantha & Ors. vs. State of T.N.) and (2017) 6 SCC 1 (Mukesh & Anr. vs. State (NCT of Delhi) and Ors. )(commonly known as,,,,

Nirbhaya’s case).,,,,

Shri Som Mishra, learned G.A. placed reliance on the statement of PW/29, the scientific officer who, deposed his statement with utmost clarity.",,,,

He urged that there is no reason to disbelieve this statement when no amount of cross examination was made to demolish this statement. He also,,,,

placed reliance on various answers given by the appellant during recording of his statement under Section 313 of Cr.P.C.,,,,

The next reliance is placed on (2016) 14 SCC 640 (Mehbood Ali vs. State of Rajasthan )and (2014) 5 SCC 509 (Dharam Deo Yadav vs. State of,,,,

U.P.). It is urged that the recovery of dead body at the instance of appellant is a material circumstance, which was rightly used by Court below for",,,,

convicting the appellant. Laboratory test is also worthy of credence in view of (2010) 9 SCC 747 (Santosh Kumar Singh vs. State through CBI.),,,,

Lastly, it is urged that no fault can be found on the sentence imposed because the appellant has committed brutal, barbaric and diabolic offence for",,,,

which appropriate punishment has been imposed.,,,,

Learned counsel for the parties confined their arguments to the extent indicated above.,,,,

We have heard learned counsel for the parties at length and perused the record.,,,,

FINDINGS :,,,,

As noticed, the appellant assailed the creditworthiness of statement of child witness - Nihal Chourasiya (P.W.3) on various counts. This is trite law",,,,

that the statement of child witness needs to be examined with great care and caution. The child witness can be tutored. This witness has not stated,,,,

anything about the Test Identification Parade (TIP). For this reason, Shri Pandit stated that factum of TIP is not established and in view of judgment",,,,

of Supreme Court in the case of Caetano Piedade Fernandes (supra), the conduction of TIP became highly doubtful. The argument on the first blush",,,,

appears to be attractive but lost much of its shine on closure scrutiny. It is apt to quote the relevant portion from the judgment of Caetano Piedade,,,,

Fernandes (supra), which reads as under:",,,,

“8. There was also evidence of test identification parade of the appellants held by Vengurlekar, Mamlatdar of Salcete. Vengurlekar deposed to the",,,,

holding of the test identification parade at which Xavier was supposed to have identified the appellants as the assailants of the deceased. But this,,,,

evidence as to the test identification parade has no meaning, since Xavier in his evidence did not depose that he had identified the appellants at the test",,,,

identification parade. Ordinarily, the person who is supposed to have identified the assailants at the test identification parade must himself give",,,,

evidence in regard to the identification’,,,,

(Emphasis supplied),,,,

Careful reading of this judgment makes it clear that the Supreme Court has consciously used the word “ordinarily†while holding that a person,,,,

who has identified the assailant must himself give evidence in regard to the identification. Thus, as a rule of thumb, it cannot be held that in all",,,,

circumstances, the TIP pales into insignificance if the eye-witness has not deposed about the identification/TIP. In 2001 (3) SCC 468 (Daya Singh Vs.",,,,

State of Haryana), the Apex Court held that the Tahasildar was least interested in the prosecution or falsely involving the accused. He was",,,,

discharging his official functions. Evidence of Tahasildar that he had gone to Central Jail for identification parade gets corroboration from the evidence,,,,

of P.W.38 who also went to the Central Jail Ambala for identifying the accused. In the instant case also, TIP was conducted by an independent",,,,

officer i.e. Naib Tahasildar (P.W. 4). This witness, in no uncertain terms, deposed that Nihal Choursiya (P.W.3) identified the appellant by touching",,,,

him from amongst the persons who were standing in a line during TIP. His aforesaid version could not be demolished during cross-examination. Thus,",,,,

in the peculiar fact situation of this case, in our opinion, the TIP was indeed conducted and non-mentioning of TIP by P.W.3 will not cause any dent to",,,,

the prosecution story.,,,,

We say so for yet another reason. The appellant in his statement recorded under Section 313 Cr.P.C made it clear that TIP was conducted. In,,,,

answer to question No.28, the appellant answered that no TIP was conducted. Interestingly, in answer to question No.29, i.e. Sanjeev Kumar",,,,

Mandare (P.W.4) stated that Nihal Choursiya identified you by touching you ? He answered that police personnel caught his hand and stated,,,,

‘appellant is the accused person’. In answer to question No.32, he admitted that in the TIP, he put his signature although on blank papers.",,,,

Hence factum of conduction of TIP is established.,,,,

The manner and method in which TIP was conducted is called in question on yet another ground that as per judgment of Supreme Court in the,,,,

case of Budhsen (supra), there should be large number of persons present in the TIP. In the instant case, four persons were standing in the line and",,,,

except their faces, remaining portion of their bodies were covered by blanket. In Budhsen (supra), the Apex Court has not mentioned any particular",,,,

number of such persons and made it clear that number of such persons should be “reasonably largeâ€. In our opinion, if four persons participated in",,,,

the TIP, it cannot be said that it runs contrary to the judgment of Budhsen (supra). Interestingly, the appellant has not argued that the persons who",,,,

were subjected to TIP were not having almost same appearance. Thus, it cannot be said that TIP was vitiated.",,,,

The child witness (P.W.3) during cross-examination stated that he was instructed by Brajesh (P.W.6). In our view, despite this part of deposition",,,,

of P.W.3, the evidence led by the prosecution needs to be examined in totality. Thus, we will examine the evidence in entirety and will deal with this",,,,

aspect at a later portion of this judgment.,,,,

The father and mother of victim (P.W.1 & P.W.2) identified the victim by perusing the C.C. TV footage. The identification of victim was made on,,,,

the basis of her general appearance and the dress she was wearing. The parents could identify their child by her appearance and dress even if her,,,,

face was not clear in the C.C.T.V. footage. Thus, in our view, the deposition of P.W.1 and P.W.2 is creditworthy whereby they identified the victim.",,,,

The body of the victim was recovered as per the information furnished by the appellant. The memorandum under Section 27 of the Evidence Act,,,,

was prepared. The said memorandum was criticized by contending that body was recovered from an open place which could be reached by public at,,,,

large. Thus, recovery itself is doubtful.",,,,

This point needs serious consideration. In 1999 (4) SCC 370 (State of H.P. Vs. Jeet Singh), the Apex Court held as under:",,,,

“26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was,,,,

made from any place which is “open or accessible to othersâ€. It is a fallacious notion that when recovery of any incriminating article was made,,,,

from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in",,,,

places which are open or accessible to others.â€​,,,,

The said principle was followed in 2013(10) SCC 298 (State of H.P. Vs. Jai Chand), which held as under:",,,,

“26. ……..The recovery of an incriminating article from a place which is open and accessible to others, alone cannot vitiate such recovery under",,,,

Section 27 of the Evidence Act.â€​,,,,

As per principle laid down in aforesaid cases, it is clear that the recovery will not stand vitiated merely because the place of recovery of dead body",,,,

of victim was an open place. Moreso, when prosecution has clearly established it that the body was found inside a “beshram"" bush. In 2004 (10)",,,,

SCC 657 (Anter Singh Vs. State of Rajasthan,) it was made clear that though recovery is made from open space, it may not render it vulnerable",,,,

because it would depend upon the factual situation of a given case where such recovery is made.,,,,

The body of victim was found inside a bush, it cannot be said that recovery of body at the instance of appellant was doubtful. At the cost of",,,,

repetition, merely because “beshram"" bush was in an open place, recovery is not vitiated. Moreso when prosecution has led credible evidence to",,,,

establish such recovery. The witnesses of recovery and relevant memo show about it with sufficient clarity and their statements could not be,,,,

demolished in cross examination,,,,

The cycle shop owner, Kanhaiya Lal Kahar (P.W.11) is an important witness of the prosecution. Shri Pandit has taken pains to contend that for",,,,

various reasons, his statement is unbelievable. No doubt, in his statement, he has deposed that after the date of incident, there was no entry regarding",,,,

any person to whom cycles were issued on rent. He narrated about this after seeing the entries in the register between 31.10.2018 to 03.11.2018. A,,,,

careful reading of his statement shows that the register (Article D) was taken by police on 01.11.2018 and, therefore, there was no occasion for him",,,,

to record any entry after 1. 11.2018. Kanhaiya Lal Kahar further stated that police recorded his statements on more than one occasion but his,,,,

statement is to be seen with statements of the other witnesses.,,,,

So far statement of Yogendra Patel (P.W.18) is concerned, this witness admitted that photography and videography were done through digital",,,,

camera. He clearly stated that in the camera, the date and time comes automatically but it is not necessary that such date and time is printed in the",,,,

photograph. He successfully sustained the cross-examination and established that photography and videography was conducted by him. This witness,,,,

has established that photography and videography of the place of incident was conducted by him.,,,,

The statement of Mahendra Singh Rajput (P.W.21) was criticized by stating that the writing in the identification certificate (Ex.P.-32) is not his,,,,

writing. Pertinently, this witness has admitted that in Village Panchayat, the name of accused person is mentioned as Deepak Patel but then stated",,,,

that “Kirar†and “Patel†belong to same caste. A careful reading of his statement makes it clear that he only stated that writing of Ex.P-32 is,,,,

not in his handwriting. There is no doubt raised about existence of his signature on Ex.P.-32. Merely because writing in the certificate was not of,,,,

P.W.21, the certificate will not vanish in thin air. This certificate is used for the purpose of identification of the accused.",,,,

The I.O's statement (P.W. 28) was doubted by contending that he allegedly recovered toy spinfinger and toy card which were allegedly used by,,,,

the appellant to lure the victim. By reading his statement with that of Nihal Choursiya (P.W.3), it was argued that recovery of these toys etc. are of no",,,,

assistance because solitary eye-witness of kidnapping i.e. P.W.3 has not stated anything about the act of luring by use of toys etc. In our view, the",,,,

evidence of a case is to be seen in its totality and if overall evidence establishes that appellant has committed the crime, the minor discrepancies in the",,,,

statements and inconsistencies will not demolish the case of the prosecution. [See: Mahavir Singh Vs. State of Haryana-2014(6) SCC-716].,,,,

As per the I.O’s statement, the appellant was arrested near a barrier. Since barrier owner/operator’s statement was not recorded and he",,,,

was not made witness, the eyebrows were raised on the prosecution story. In our view, the I.O's statement regarding arrest of appellant near barrier",,,,

could not be demolished during the cross-examination. The appellant took the defence that he was under externment order and was at Burhanpur but,,,,

no evidence in this regard was produced by him. No other witness on his behalf entered the witness box and supported the story. As per the defence,",,,,

he was at his Uncle’s (Mama) home at Burhanpur. He could have produced his Uncle to substantiate his case. He could have produced the travel,,,,

ticket to show that he had actually traveled to Burhanpur and stayed with his uncle. The appellant has failed to establish with absolute certainty that he,,,,

was at Burhanpur. Thus, he failed to discharge the burden ( See : Binay Kumar Singh Vs. State of Bihar-1997(1) SCC 28 3and Vijay Pal Vs. State",,,,

(Govt. of NCT of Delhi-2015(4) SCC-749).,,,,

The impugned judgment shows that the following circumstances were found against the appellant:,,,,

(i) The cycle was taken on rent by the appellant from Kanhaiya Lal Kahar (P.W.11) and he deposited the cycle on the date of incident itself,,,,

(31.10.2018).,,,,

(ii) The appellant was seen by brother of victim Nihal Choursiya (P.W.3) and he informed about the incident to his parents. On this basis, a report",,,,

regarding missing person and kidnapping was recorded by father of victim.,,,,

(iii) In C.C. TV footage of cycle stand and RCC Agency, the appellant was seen carrying the victim on the cycle. They were identified by the",,,,

prosecution witness.,,,,

(iv) During the relevant period, the appellant remained with the victim and thereafter he deposited the cycle at the cycle shop.",,,,

(v) On the information furnished by the appellant, the dead body of the victim was recovered from the place of incident. Her hands and legs were",,,,

found tight by a “chunri â€​. This was clearly established by photographs and video recording.,,,,

(vi) The team of doctors in the postmortem report (Ex.P-55) opined that victim died within 72 to 96 hours from the time of postmortem. She was,,,,

subjected to sexual assault within two hours before her death. This period tallies with the duration during which appellant took a cycle on rent and,,,,

deposited the same. It connects the appellant with the crime.,,,,

(vii) The vaginal slides and undergarment of the appellant were sent for DNA test. The undergarment of the appellant was also sealed. Appellant's,,,,

blood sample was obtained for the purpose of DNA test. The DNA report is against the appellant.,,,,

(viii)The appellant was last seen with the deceased and was duly identified by Nihal Choursiya (P.W.3).,,,,

(ix) During cross-examination, the appellant has not given any justifiable explanation about the incriminating material produced by the prosecution.",,,,

(x) The appellant murdered the victim so that no direct evidence of rape/sexual assault remains.,,,,

The counsel for the appellant raised serious doubt on the DNA report. By placing reliance on sub-section (4) of Section 53-A of Cr.P.C. it was,,,,

urged that in absence of mentioning exact time of commencing and completion of examination, the examination stands vitiated. We do not find any",,,,

merit in this contention. Section 53-A(4) provides a procedure. Every procedural failure will not vitiate the entire examination. The criminal procedure,",,,,

like all procedural laws, is designed to further the ends of justice and not to frustrate them by technicalities. Unless it is established that any procedural",,,,

flaw has vitiated the examination in toto, non mentioning of time etc. will not be fatal. It is further well settled that fairness of trial/examination has to",,,,

be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. [See: 2015 (4) Crimes SC 1 (AG",,,,

Vs. Shiv Kumar Yadav)].,,,,

The DNA test report was proved by P.W.24. During cross-examination, no questions were asked which may create any doubt on the correctness",,,,

of this report. Merely because time and duration of test is not mentioned in the report, it will not vitiate the said report. The DNA report was assailed",,,,

by contending that P.W.24 produced the relevant certificate which shows that DNA sample was taken but said document was a photocopy and,",,,,

therefore, the Court did not permit the prosecution to exhibit the same. Heavy reliance was placed on a note appended in the examination-in-chief",,,,

portion of Dr. Sunil Jain (P.W.24). However, a microscopic reading of this para makes it clear that note appended only contains the rival contentions",,,,

of the parties. On the contrary, Para 2 of the deposition of P.W.24 shows that prosecution was permitted to mark the seizure memo as Ex.P.-16",,,,

whereby two test tubes containing blood sample of the appellant were seized.,,,,

The Court below brought certain incriminating materials to the notice of the appellant and permitted him to clarify in this regard. The relevant,,,,

portion reads as under:,,,,

,,,,

- ,",,,,

,,,,

-225 0 0( 00-24 ) . .. ,,,,

,,,,

?,,,,

,,,,

,,",,,,

,,,,

-226 0 (0 0 -24) , ,",,,,

, ?",,,,

,,,,

- ,",,,,

This statement of the appellant leaves no room for any doubt that for DNA test, blood sample was taken by Dr. Sunil Jain (P.W.24). The",,,,

appellant’s blood sample was seized by a memo which contains his photograph, signature and thumb impression. This is settled that the statement",,,,

of an accused made under Section 313 of the Code can be taken into consideration and it is permissible to use it when it corroborates the prosecution,,,,

case. [See: 2010 (8) SCC 249 (Sanatan naskar Vs. State of W.B.,) 2013 (5) SCC 753 (Khairuddin Vs. State of W.B.) ,2012 (4) SCC 289 (Brajendra",,,,

Singh Vs. State of M.P.)].,,,,

In 1992 (3) SCC 700 (State of Maharashtra Vs. Sukhdev Singh), it was held that Section 313 of the Code is a statutory provision and embodies the",,,,

fundamental principle of fairness based on the maxim audi alteram partem. It was further held that an answer given by an accused under Section 313,,,,

examination can be used for proving his guilt as much as the evidence given by a prosecution witness. The Apex Court after taking note of AIR 1968,,,,

SC 110 (State of Maharashtra Vs. R.B. Chowdhari), AIR 1953 SC 468 (Hate Singh Bhagat Singh Vs. State of M.B.) formed the said opinion.",,,,

Similarly, in AIR 1998 SC 1007 (State of U.P. Vs. lakhmi,) it was held that the need of law for examining the accused with reference to",,,,

incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor it is a mere formality. It has a",,,,

salutary purpose. It was further held that if an accused admits any incriminating circumstance appearing in evidence against him, there is no warrant",,,,

that those admissions should altogether be ignored merely on the ground that such admission were advanced as a defence strategy. The Apex Court,,,,

further opined that time and again it was pointed out that answers of accused will be taken into consideration in deciding whether the prosecution,,,,

evidence can be relied on and whether accused is liable to be convicted of the offences charged against him.,,,,

Reverting back to a point deferred previously (in para-35), it is profitable to note that a minute reading of statement of appellant recorded under",,,,

Section 313 of the Code shows that he admitted the factum of conduction of TIP, his identification by P.W.3, obtaining of blood sample and seizure",,,,

memo was clearly admitted by the appellant in his aforesaid reproduced answer. Thus, we do not find any substance in the argument that collection of",,,,

blood sample was doubtful which causes a dent on the ultimate DNA report. Similarly the point regarding tutoring of P.W.3 will not be fatal to the,,,,

prosecution story because chain of events were clearly proved.,,,,

It is also noteworthy that in catena of judgments, it was held that it is obligatory on the part of the accused while being examined under Section 313",,,,

of the Code to furnish some explanation with respect to the incriminating circumstances associated with him and the Court must take note of such,,,,

explanation even in a case of circumstantial evidence, to decide whether or not chain of circumstances is complete. [ See: 2010 (2) SCC 748",,,,

(Musheer Khan Vs. State of M.P.), 2012 (11) SCC 205 (Sunil Clifford Daniel Vs. State of Punjab) and2 014 (12) SCC 419 (Madhu Vs. State of",,,,

Karnataka)].,,,,

In view of ratio decidendi of these cases, it can be safely held that in a case of this nature, where conviction is recorded on the basis of",,,,

circumstantial evidence, the statement of appellant under Section 313 was a relevant material.",,,,

The DNA test report is clearly against the appellant. The Apex Court in2 001 (5) SCC 311 (Kamti Devi Vs. Poshi Ram,) 2005 (5) SCC 194",,,,

(Kamalanantha Vs. State of T.N.) and 2017 (6) SCC 1 (Mukesh Vs. State (NCT of Delh i)held that DNA report is scientifically accurate and on the,,,,

basis of this report, conviction can be recorded. Similarly, in 2010 (9) SCC 747 (Santosh Kumar Singh Vs. State through CBI), the Laboratory Test",,,,

Report was held to be trustworthy. The prosecution has satisfactorily and beyond reasonable doubt established that DNA report was against the,,,,

appellant.,,,,

In view of foregoing analysis, it is clear that certain discrepancies and contradictions in the statement of prosecution witnesses will not demolish",,,,

the story of the prosecution. The prosecution could establish the chain of events. From ""last seen"" to the recovery of dead body of the victim and up to",,,,

the DNA test, the link was duly established. Thus, we are unable to hold that the Court below has committed any error in convicting the appellant. The",,,,

prosecution, in our opinion, has satisfactorily and beyond reasonable doubt established that the appellant committed the offences under various sections",,,,

of IPC and POCSO Act.,,,,

Regarding sentence :,,,,

Learned counsel for the appellant urged that the capital punishment imposed by the Court below runs contrary to the settled legal position. The,,,,

past record cannot be taken into account because no conviction is recorded in those pending cases.,,,,

Shri Som Mishra argued in support of capital punishment by taking assistance of recent judgment of Supreme Court reported in( 2019) 7 SCC 716,,,,

(Manoharan vs. State). It is urged that a review petition filed against this judgment was also dismissed and judgment passed in review is reported in,,,,

2019 SCC Online 1433. The argument of Government Counsel is that the conclusion drawn by court below is based on DNA test result and similar,,,,

was the case of Manoharan(Supra). If the mitigating and aggravating circumstances of both the cases are examined in juxtaposition, it will be clear",,,,

that the circumstances are almost same. The Apex Court also took note of other tests namely; 'Crime Test', 'Criminal Test' and 'R-R Test'. The",,,,

outcome of those tests will be same in both the cases. Lastly, it is urged that the Supreme Court considered the concern of the people and the",,,,

Parliament because of which POCSO Act has been amended and the sentence is adequately enhanced. The Legislative intent and concern may be,,,,

taken note of. Shri Pandit urged that the said judgment has no application in the facts situation of the present case.,,,,

Indisputably, 8 criminal cases of different nature were pending against the appellant which includes Crime Nos.297/2016 and 67/2017 under",,,,

Section 363 IPC. The question is : whether on the basis of pending cases, the appellant can be awarded capital punishment ? This point is no more res",,,,

integra. In 2014 (3) SCC 421 (Birju Vs. State of Madhya Pradesh,) the Apex Court considered its previous judgment in 2013 (5) SCC 546 (Shankar",,,,

Kisanrao Khade Vs. State of Maharashtra) and opined that no materials have been produced before the Court to show that the accused stood,,,,

convicted in any of the cases which form part of criminal antecedent. The cases are pending and appellant has not been convicted. In a given case,",,,,

the pendency of large number of criminal cases against the accused persons might be a factor which could be taken note of for awarding a sentence,,,,

but in any case, not a relevant factor for awarding capital punishment. Thus, we are in agreement with the argument of the learned counsel for the",,,,

appellant that pendency of criminal cases against the appellant cannot be a ground for imposing capital punishment.,,,,

The sentencing policy was taken note of by Apex Court in large number of cases. In the case of Bachan Singh Vs. State of Punjab, 1980 (2) SCC",,,,

684, it was held that the normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The Court can depart from",,,,

that rule and impose the sentence of death only when there are special reason. If the offence is of an exceptionally depraved and heinous character,,,,

and constitute on account of its design and the manner of its execution, a source of grave danger to the society at large, the Court may impose death",,,,

sentence. While interpreting Section 354 of Cr.P.C., the Apex Court in Machhi Singh and others Vs. State of Punjab, 1983 (3) SCC 47 0opined that a",,,,

balance sheet of aggravating and mitigating circumstance has to be drawn up and in doing so, the mitigating circumstance has to be accorded full",,,,

weightage and a just balance has to be struck between the aggravating and mitigating circumstances. The question which needs to be posed is,,,,

whether the crime is such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating,,,,

circumstance.,,,,

In a recent judgment, 2018 SCC Online 2570 (Channulal Verma Vs. State of Chhattisgarh,) the Apex Court took note of its previous judgments on",,,,

sentencing policy and opined that the test discussed in Shankar Kishanrao Khade (supra) needs to be applied while awarding the death sentence. The,,,,

test for death sentence are (crime test, criminal test and R-R test) and not the “balance testâ€. To award death sentence, the ‘crime test’",,,,

has to be fully satisfied i.e. 100% and ‘criminal test’ 0% i.e. no mitigating circumstance favouring the accused. It was poignantly held that if,,,,

there is any circumstance favouring the accused like young age of accused, ‘criminal test’ may favour the accused to avoid the capital",,,,

punishment.,,,,

In the instant case, the prosecution pointed out the aggravating circumstance by projecting that victim was five years old innocent girl who was",,,,

unmindful of unholy design of the appellant, the victim was defenceless and offence is committed without there being any provocation. The victim was",,,,

in an unprotected stage, faith of society is badly shaken and the appellant had a criminal record. On the other hand, the appellant urged that he is a",,,,

young boy of 20 to 21 years. It is a mitigating circumstance. He has not been convicted in any of the cases. Chances of his reform cannot be ruled,,,,

out.,,,,

In this backdrop, it is to be seen whether the capital punishment imposed by the Court below is justifiable. As noticed, the death sentence can be",,,,

imposed only when there is no other alternative. Otherwise imposition of life imprisonment is the rule. In the instant case, the mitigating circumstances",,,,

are in favour of the appellant. As per the recent judgment of the Apex Court, in the case of Channulal Verma (supra), even if one circumstance",,,,

favours the accused which includes his young age, capital punishment is not justifiable.",,,,

In our opinion, the judgment of Manoharan (supra) cannot be pressed into service for the purpose of maintaining capital punishment. In Manoharan",,,,

(supra), two children were murdered after premeditation. They were administered poison and raped. Thereafter, their dead bodies were thrown in the",,,,

canal. The allegation of sodomy was also found proved in the said case. In a different factual backdrop in Manoharan (supra), the death penalty got a",,,,

stamp of approval from the Supreme Court. In our opinion, the facts and circumstances of the present case are not similar qua the case of Manoharan",,,,

(supra). Thus, we are unable to persuade ourselves with the argument of learned Government counsel for giving stamp of approval to capital",,,,

punishment.,,,,

The Apex Court in the case of Parsuram (supra) considered its previous judgment and held as under:,,,,

“14. As laid down by this Court in Swamy Shraddananda (2) v. State of Karnataka [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13",,,,

SCC 767 : (2009) 3 SCC (Cri) 113,] and subsequently affirmed by the Constitution Bench of this Court in Union of India v. V. Sriha-ran [Union of",,,,

India v. V. Sriharan, (2016) 7 SCC 1 : (2016) 2 SCC (Cri) 695,] this Court may validly substitute the death penalty by im-prisonment for a term",,,,

exceeding 14 years, and put such sentence be-yond remission. Such sentences have been awarded by this Court on several occasions, and we may",,,,

fruitfully refer to some of these deci-sions by way of illustrations. In Sebastian v. State of Kerala [Sebas-tian v. State of Kerala, (2010) 1 SCC 58 :",,,,

(2010) 1 SCC (Cri) 444] , a case concerning the rape and murder of a 2-year-old girl, this Court modified the sentence of death to imprisonment for",,,,

the rest of the ap-pellant's life. In Rajkumar v. State of M.P. [Rajkumar v. State of M.P., (2014) 5 SCC 353 : (2014) 2 SCC (Cri) 570 ], a case",,,,

concerning the rape and murder of a 14-year- old girl, this Court directed the appellant therein to serve a minimum of 35 years in jail without",,,,

remission. In Selvam v. State [Selvam v. State, (2014) 12 SCC 274 : (2014) 5 SCC (Cri) 62 ], this Court imposed a sentence of 30 years in jail with-",,,,

out remission, in a case concerning the rape of a 9-year-old girl. In Tattu Lodhi v. State of M.P. [Tattu Lodhi v. State of M.P., (2016) 9 SCC 675 :",,,,

(2016) 3 SCC (Cri) 761], where the accused was found guilty of committing the murder of a minor girl aged 7 years, the Court imposed the sentence",,,,

of imprisonment for life with a direction not to release the accused from prison till he completed the period of 25 years of imprisonment.â€​,,,,

(Emphasis supplied),,,,

If the capital punishment imposed by the Court below is tested on the anvil of the principles laid down in various cases including the case of,,,,

Parsuram (supra), it will be clear like noon day that capital punishment was unwarranted. Thus, while upholding the conviction, we deem it proper to",,,,

interfere with the capital punishment.,,,,

Having regard to the facts and circumstance of the case, we find that instant case does not fall in the category of the “rarest of the rare caseâ€​",,,,

deserving imposition of death penalty. The interest of justice would be met if appellant is sentenced to undergo imprisonment of 35 years (without,,,,

remission). Accordingly, we partly allow the appeal. While confirming the conviction and other sentence, we modify the death penalty to life",,,,

imprisonment of appellant of an actual period of 35 years (without any remission). The appeal is partly allowed.,,,,