State Of Uttarakhand & Others vs Sardar Parwan Singh & Others

Ravindra Maithani, J

In Sessions Trial No. 70 of 2017, State Vs. Sardar Parwan Singh, the learned Fast Track Court/ Additional District and Sessions Judge/ Special Judge (POCSO), District Dehradun (for short "the case") by the judgment and order dated 22/23.08.2018, convicted Sardar Parwan Singh for the charges under Sections 376 and 302 IPC and Section 5 read with 6 of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act") and sentenced him as hereunder:-

"(i)       Under Section 6 of the POCSO Act, imprisonment for life and a fine of Rs. 30,000/-. In default of payment of fine, to undergo rigorous imprisonment for a further period of two years.

(ii)        Under Section 302 IPC death penalty & a fine of Rs.30,000/- In default of payment of fine, to undergo rigorous imprisonment for a further period of two years."

Criminal Reference No. 3 of 2019 has been submitted for the confirmation of death penalty awarded to Sardar Parwan Singh.

In Criminal Jail Appeal No. 40 of 2018, Sardar Parwan Singh Vs. State, the impugned judgment and order dated 22/23.08.2008, convicting and sentencing Sardar Parwan Singh has been challenged.

In this judgment, Sardar Parwan Singh shall be referred to as "the appellant" or "the appellant Sardar Parwan Singh".

Briefly stated the facts of the case are as hereunder:-

(i.)        Informant in the case is the mother of the two victim girls, both minor, one aged 13 years and another 4 years. The informant was staying alongwith her three children; two deceased daughters and one son aged 8 years. Her husband had been convicted in a case and was undergoing sentence when this incident occurred. This incident happened in Rishikesh, District Dehradun. Appellant was employed with a Gurudwara as a Granthi. The house of the informant, in fact, is a room measuring approximately 10 x 10 feet. It was adjoining to the Gurudwara. The informant and the appellant were neighbours. On 15.06.2017 morning, at about 07:10, the informant, (mother of the victim girls) left her house for work, leaving her two minor daughters at home. Her son had gone with a relative on the previous evening. When the son of the informant returned on 15.06.2017 alongwith the relative, he found the house bolted from outside. When they opened the door, they saw that both the victims were dead inside the house. Some unknown person had killed them by strangulation. Informant has been examined as PW1 in the case. PW1 the mother of the victim girls got the report written by PW3 one of her relatives and lodged it at 02:30 PM, on the same day, at about 50 meters distance, at Police Station Rishikesh. Based on it, Case Crime No. 39 of 2017, under Section 302 IPC was registered.

(ii.)       Information of the incident had reached to the police, before FIR was lodged. PW7 Sub Inspector, Manohar Singh Rawat was the first person, who reached at the scene of crime. He prepared the inquest of the elder daughter of PW1, who was 13 years of age. PW9 Sub Inspector, Rajesh Singh was posted at Police Chauki Bus Station at the relevant time. He also reached at the spot and prepared the inquest of the younger victim aged 4 years. PW8 A.S.P Niharika Bhatt is the Investigating Officer. She also reached at the scene of crime. According to the prosecution, there were some blood spots on the wall. They were taken into custody and a memo Ex A-13 was prepared by PW8 A.S.P Niharika Bhatt. In the right hand fist of the elder victim girl, some white coloured hair were found and some hair were also found on her body. A school belt was also lying near the place of occurrence. Both these things were taken into custody and a memo Ex A-14 was prepared by PW7 S.I. Manohar Singh Rawat. It is the case of prosecution that PW1 the mother of the victims suspected involvement of the appellant in the case, because he was a man with white beard. PW8 A.S.P Niharika Bhatt interrogated him and according to her, the appellant confessed his guilt. He was arrested at 06:30 PM on the same day. Information of his arrest was given at 08:25 PM. The memo is Ex A-16. The appellant was examined medically, on the same day at about 10:05 PM by PW5 Dr. B.S. Toliya.

(iii.)      The postmortem of the dead bodies of the victims was conducted on 16.06.2017 by PW6 Dr. Mukesh Kumar Pandey. There were many injuries on the private parts of the younger victim. She was sexually assaulted and strangulated. According to PW6 Dr. Mukesh Kumar Pandey, she died due to strangulation and due to ante mortem injuries. According to PW6 Dr. Mukesh Kumar Pandey, the elder victim also died due to strangulation. The injuries will be discussed in a little detail at a later stage. The doctors, who conducted post mortem, also took vaginal and cervical swabs and smear, samples of nails etc. Doctor, who conducted medical examination of the appellant also took into custody the underwear and hair of the appellant. These articles alongwith articles recovered from the scene of crime were sent for Forensic Science Examination and a report received, which connects the appellant to the crime. It is also the case of the prosecution that for the purpose of examination, blood samples of the appellant were also taken. PW8 A.S.P Niharika Bhatt, the Investigating Officer, prepared site plan, which is Ex A-15. After investigation, it is PW10 Inspector Praveen Singh Koshyari, who submitted charge sheet in this case. Cognizance was taken.

On 04.10.2017, charges under Sections 376 and 302 IPC and Section 6 POCSO Act were framed against the appellant, to which, he denied and claimed trial.

In order to prove the case, the prosecution examined as many as 14 witnesses, namely, PW1 mother of the victims, PW2 a relative of the victims and PW3 a relative of the victims, PW4 Const. Ranjeet Kaur, PW5 Dr. B.S. Tolia, PW6 Dr. Mukesh Kumar Pandey, PW7 S.I. Manohar Singh Rawat, PW8 A.S.P Niharika Bhatt, PW9 S.I. Rajesh Singh, PW10 Ins. Praveen Singh Koshyari, PW11 Const. Rakesh Kumar, PW12 Const. Vikash Kaur, PW13 Manoj Sagar and PW14 Dr. Manoj Kumar Agarwal.

The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). According to him, he was beaten badly by the Police. He is innocent; he has been falsely implicated due to enmity. Appellant has given a long statement in his examination under Section 313 of the Code. According to him, on the date of incident at about 06:00 PM, he was called by the Police and taken to the police station, where he was beaten up. A rod was inserted into his anus. He bleeded profusely; Police snatched hair from his beard. His blood was also taken by scratching glass piece on his skin. He was arrested and confined in the police station; in the mid-night at about 11:00-12:00 again hair from his beard were taken by a Police Daroga and he was sent to jail, where he was treated upon. He also produced two witnesses in his defence, namely, DW1 Shranjeet Kaur and DW2 Ajay Kumar Sharma.

Learned court below, by the impugned judgment and order convicted and sentenced the appellant, as stated hereinbefore. Reference has been made under Section 366 of the Code for the confirmation of death penalty. The appellant also challenged his conviction and sentence.

Heard Mr. V.K. Gemini, learned Deputy Advocate General and Mr. Arvind Vashishtha learned Senior Counsel and perused the records.

Learned counsel for the State would argue that the appellant Sardar Parwan Singh had occasion and opportunity to commit the crime. He was looking for an opportunity to do so; on the previous day, he was walking in front of the house of the victims and tried to indulge into conversation with them; his presence made the elder victim disconcerted on the previous evening; on the dead bodies of the victims, hair were found and it match with the DNA of the appellant. Therefore, it is argued that prosecution has been able to prove the case beyond reasonable doubt against the appellant. It's a brutal killing after sexual assault; two helpless, innocent and defenseless girls have been killed. The case comes within the category of "rarest of rare" cases and the learned court below rightly convicted and awarded death penalty to the appellant, therefore, the death penalty needs to be confirmed and appeal dismissed.

On the other hand, learned counsel for the appellant would submit that in the instant case, prosecution has not been able to prove the charges beyond reasonable doubt; there is no evidence except the DNA report, which is not reliable because the chain of taking samples, storing and transporting them to the Forensic Science Laboratory (FSL) is not established; even it is not established, as to how and when, by whom, the samples of blood of the appellant was taken. Learned Senior Counsel would argue that in the absence of any such evidence, the DNA report becomes unreliable. Learned Senior Counsel would also argue that after all DNA report is an expert opinion and it cannot be the sole basis for conviction. There is no other evidence against the appellant, therefore, the conviction cannot be upheld.

In support of his contention learned Senior Counsel has placed reliance in the case of Pattu Rajan Vs. State of Tamil Nadu (2019) 4 SCC 771.

Instant is the case, which is based on DNA report. What is the effect of DNA report? How is it to be evaluated? How the expert's examination should be considered? These and many more aspects have been examined by this Court in the case of State Vs. Akhtar Ali (Criminal Reference No. 1 of 2016) and connected cases and this Court on the basis of settled principle of law (Bhagwan Das and another Vs. State of Rajasthan, AIR 1957 SC 589, Kamti Devi (Smt.) and another Vs. Poshi Ram (2001) 5 SCC 311, Wasudeo Badwaik Vs. Lata Nandlal Badwaik and another, (2014) 2 SCC 576, Kamalanantha and others Vs. State of Tami Nadu (2005) 5 SCC 194, Pantangi Balarama Venkata Ganesh Vs. State of Andhra Pradesh (2009) 14 SCC 607, Santosh Kumar Singh Vs. State through CBI (2010) 9 SCC 747, Mukesh and another Vs. State (NCT of Delhi) and others, (2017) 6 SCC 1.) held as hereunder:-

"(i).      Expert opinion should be respected.

(ii).       Court should not ordinarily substitute the opinion of the expert merely on the basis of collecting some passages from other text books without seeking explanation of the expert  on those texts.

(iii)       The result of a genuine DNA test is scientifically accurate.

(iv)       Precautions are required to be taken to ensure proper DNA examination.

(v)        The DNA report deserves to be accepted unless absolutely dented and for non-acceptance of the same, it has to be established that there have been no quality control or quality assurance. If the sample is proper and if there is no evidence as tampering of the samples, the DNA test report is to be accepted.

(vi)       The Court should not venture on its own to discredit the opinion of an expert on the basis of certain texts and books, without putting these texts and books to the expert and taking his opinion thereon.

(vii)      If questioned, the Court may examine the methodology or data collection or the process involved in the DNA examination. The questioning should begin with the expert.

(viii)     The expert opinion and its basis are relevant to be accepted without analysis unless it is demonstrated that the report is dented."

This case will be examined on the basis of settled legal principles. There is another aspect of the matter, which would require deliberation in the instant case, which is, as to whether, conviction can be made solely on the basis of DNA report?

In the case of Premjibhai Bachubhai Khasiya Vs. State of Gujarat and another, 2009 Cri. L.J. 2888, Hon'ble Gujrat High Court, inter alia, held as hereunder:

"14.     It is thus clear that positive DNA report can be of great significance, where there is supporting evidence, depending of course on the strength and quality of that evidence. If the DNA report is the sole piece of evidence, even if it is positive, it cannot conclusively fix the identity of the miscreant, but, if the report is negative. It would conclusively exonerate the accused from the involvement or charge.

The science of DNA is at a developing stage and when the Random Occurrence Ratio is not available for India Society, it would be risky to act solely on a positive DNA report, because only if the DNA profile of the accused matches with the foetus, it cannot be considered as a conclusive proof of paternity. Contrarily, if it is solitary piece of evidence with negative result, it would conclusively exclude the possibility of involvement of the accused in the offence.

The DNA Science and Report is founded on probability theory. When the profiles of accused and foetus/child are consistent, it only shows a probability as per Random Occurrence Ratio. Obviously, it cannot be made use of as sole basis of conviction in a criminal case, more so when the Random Occurrence Ratio is not available of Indian Society.

16.1 But, when it is found that the DNA profiles are not consistent or do not match, they conclusively rule out the possibility of involvement of the accused and can be used for recording an acquittal in a criminal case.

16.2 We appreciate the action on the part of the Investigating Police Officer to opt for collection of scientific evidence in form of DNA Report. DNA Report plays an important role and its need and usefulness cannot be underestimated. It is useful to any Investigating Police Officer to assess as to whether his investigation of a crime is on right track or not. It would save people from facing unwarranted prosecutions. But, when the question of appreciation of evidence of such report arises before a criminal Court, especially when such report is positive, it shall look for other evidence, particularly when such other evidence does not fall in line with the result in the positive DNA report or when such other evidence is in direct conflict with the opinion expressed in such positive report. Such report can be used as corroborative evidence i.e. an evidence to substantive other evidence. A positive DNA report cannot be the sole and conclusive evidence to record conviction in a criminal case."

In the case of Pattu Rajan Vs. State of Tamil Nadu (2019) 4 SCC 771, Hon'ble Supreme Court categorically observed that like all other opinion evidence, DNA evidence is also in the nature of opinion evidence, as envisaged under section 45 of the Indian Evidence Act, 1872 and the duty of the expert witness is to assist the Court. The Court observed as hereunder:

"49. One cannot lose sight of the fact that DNA evidence is also in the nature of opinion evidence as envisaged in Section 45 of the Evidence Act. Undoubtedly, an expert giving evidence before the court plays a crucial role, especially since the entire purpose and object of opinion evidence is to aid the court in forming its opinion on questions concerning foreign law, science, art, etc., on which the court might not have the technical expertise to form an opinion on its own. In criminal cases, such questions may pertain to aspects such as ballistics, fingerprint matching, handwriting comparison, and even DNA testing or superimposition techniques, as seen in the instant case.

Undoubtedly, it is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise along with his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate conclusion. Be that as it may, it cannot be forgotten that opinion evidence is advisory in nature, and the Court is not bound by the evidence of the experts, [See State (UT of Delhi) v. Pali Ram (1979) 2 SCC 158 : 1979 SCC (Cri) 389; State of H.P. v. Jai Lal (1999) 7 SCC 280 : 1999 SCC (Cri) 1184; Baso Prasad v. State of Bihar (2006) 13 SCC 65 : (2007) 2 SCC (Cri) 567; Ramesh Chandra Agrawal v. Regency Hospital Ltd. (2009) 9 SCC 709 : (2009) 3 SCC (Civ) 840 and Malay Kumar Ganguly v. Sukumar Mukherjee (2009) 9 SCC 221 : (2009) 3 SCC (Civ) 663 : (2010) 2 SCC (Cri) 299.]

Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on the facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party."

Therefore, in view of the settled principles of law, it can safely be concluded that no standard probative value of DNA report may be fixed for all the cases under all the circumstances. The probative or evidentiary value of DNA report depends upon various factors including it's accuracy; the biological part from which it was detected; the other attending circumstances etc. The evidentiary value of DNA report varies from case to case depending upon specific facts and circumstances of each case.

In the instant case, the mother of the victims proved the First Information Report, which she got written by PW3 a relative of her. According to PW1, the mother of the victims, on 15.06.2017 at about 07:00-10:00 PM, she left her house for work, leaving behind her two minor daughters. Her son aged 8 years had gone with a relative on the previous evening. When his son alongwith the relative returned to his house at 08:30 PM on 15.06.2017, he found both his sisters dead. He immediately, alongwith the relative rushed to this witness and informed her. This witness returned to her house and found both her young daughters dead.

According to PW1, from the fist of the elder victim and from her dead body hair were found, which were kept in a plastic bag by the Police. According to her, she believed that some person having white hair had committed the crime. The appellant lived in her neighbourhood and works in the Gurudwara. She suspected him because he had white beard. According to PW1, her relative (PW2) had told it to her that in the previous evening, she noticed appellant roaming in front of their house, which made the elder victim discomfit. This witness has also stated about the other articles, which Police took into custody.

PW2 is a relative of victims, (PW2 happens to be the daughter-in-law of the sister-in-law of PW1), who had taken the minor son of PW1 on the previous evening alongwith her and returned on 15.06.2017. She is the first person, who noticed the victims, dead. According to her, she tried to wake up the victims, but they did not move. She tried to make them drink water but failed. She noticed marks of injuries on their necks. Thereafter, according to PW2, she informed PW1, mother of the victims.

PW2 has not stated that on 14.06.2017 when she was in the house of PW1 the victim felt disconcerted due to presence of the appellant.

PW3 is another relative of PW1, who wrote the FIR. She also states that upon information having been received, she reached at the scene of crime. Police had taken into custody, white hair from the right fist and body of the elder victim. She has stated about the report Ex A-1 written by her and other articles taken by Police into custody.

PW4 Const. Ranjeet Kaur is the Police Constable, in whose presence the inquests were prepared. She has stated about it. PW7 S.I. Manohar Singh Rawat and PW9 S.I. Rajesh Singh directed her to inspect the dead bodies. According to her, after inspecting the dead bodies, she took them for post-mortem.

PW5 Dr. B.S. Tolia examined the appellant at 10:05 PM on 15.06.2017 in a Government Hospital at Rishikesh and found the following injuries:-

"i.        Abrasion 1.5 x .5 cm size, 1.5 cm lateral to left lower lid red in colour.

ii.         L.W. 1 x .5 cm size, rights medial aspect of palm 3 cm above right wrist joints, red in colour, skin slightly left and margin clear cut."

PW5 Dr. B.S. Tolia proved the report and according to him, injuries could be caused due to teeth bite.

PW6 Dr. Mukesh Kumar Pandey conducted the post-mortem of the victims. According to him, the post-mortem of younger victim aged 4 years was conducted on 16.06.2017 at 02:30 PM. He found the following injuries on her person:-

"i-   Multiple bruises and abrasions present over both side of neck extending from right side of neck just below right ear lobule to mastoid; size of injuries 20 cm (length) x (width) 2 to    2.5cm. On dissection there is subcutaneous haemorrhage underneath the injury, hyoid bone fractured.

ii- Vulvar edema present, hymen is ruptured. Anterior and posterior vaginal wall congested. Vaginal cervical swab and smears made. Sample of nails. Urethral swab and throat swab and EDTA blood sample taken for forensic examination."

According to PW6 Dr. Mukesh Kumar Pandey, injuries and death were due to forceful intercourse and pressing against her neck with force. He has also stated about the condition of other organs of the body & proved post-mortem report Ex A-5. According to PW6 Dr. Mukesh Kumar Pandey, the cause of death is asphyxia, as a result of ante-mortem suggesting throttling.

PW6 Dr. Mukesh Kumar Pandey also conducted post-mortem of the elder victim aged 13 years, on the same day, at about 12:30 PM and found the following ante-mortem injuries.

"(i.)      Abrasion and bruises present on front of the neck ending to both side of the neck measuring length 24 CM x width 3 x 4 CM. On dissection multiple haemorrhage present on sub cutaneous tissue. Underlying vessels are congested."

PW6 Dr. Mukesh Kumar Pandey has also stated about the conditions of other organs and concluded that the cause of death is due to asphyxia as a result of ante-mortem suggesting throttling. He proved post-mortem report Ex A-6.

PW7 S.I. Manohar Singh Rawat, PW8 A.S.P Niharika Bhatt and PW9 S.I. Rajesh Singh are three police officers, who reached at the scene of crime. PW7 S.I. Manohar Singh Rawat prepared inquest of the elder victim. He has stated about it and has also stated about the injuries on her neck, palms and right wrist. According to him, when the forensic team reached at the spot and inspected it minutely, they spotted human blood on the wall. When lady constable Geeta Sharma inspected the dead body of the elder victim, white hair were found in her right fist as well as on her body, which were taken into custody. He proved the inquest Ex A-7 and two more important memos, they are Ex A-13 by which blood stained material was taken into custody from walls and Ex A-14 by which white hair as well as the belt was taken into custody.

PW9 S.I. Rajesh Singh conducted the inquest of younger victim, he proved it, which is Ex A-19. He proved other documents for sending the dead bodies for post-mortem.

PW8 A.S.P Niharika Bhatt is the Investigating Officer. According to her, she also visited the spot. According to her, the appellant confessed his guilt before her. She proved the site plan Ex A-15. PW10 Ins. Praveen Singh Koshyari completed the investigation and submitted the charge-sheet.

PW11 Const. Rakesh Kumar is a formal witness, who proved Chik FIR and general diary entries. PW12 Const. Vikash Kaur is the person, who took the samples to FSL. PW13 Manoj Sagar proved certain other general diary entries by which the articles recovered from the scene of crime; from the person of the appellant at the time of his medical examination as well as the samples collected during post-mortem were lodged with police station which are Ex Nos. A-28, 29 and 30.

PW14 Dr. Manoj Kumar Agarwal is the Scientific Officer, FSL Dehradun. He proved the report Ex A-32. According to it, DNA obtained from the white hair, school belt, T-shirt of the elder victim match with DNA obtained from the blood sample of the appellant. The report concludes as hereunder:-

"1.       The DNA obtained from the Exhibits - 1, 2, 12 and 28 (white hair, school belt, T-shirt of deceased Manisha and underwear of accused Parwan Singh) are from a single male human source and matching with the DNA obtained from the Exhibit - 25 (blood sample of accused Parwan Singh).

The DNA obtained from the Exhibit - 22 (frock of deceased Riay) is matching with the DNA obtained from the Exhibits - 24 and 25 (blood sample of deceased Riya and blood sample of accused Parwan Singh).

The DNA obtained from the Exhibits - 4, 7, 8, 9 and 10 (vaginal swab, throat swab, nails, vaginal smear slide and cervical smear slide of deceased Manisha) are from a single female human source and matching with the DNA obtained from the Exhibit - 23 (blood sample of deceased Manisha).

The DNA obtained from the Exhibits - 15, 16, 17, 18, 19 and 21 (vaginal swab, cervical swab, urethral swab, throat swab, nails and cervical smear slide of deceased Riya) are from a single female human source and matching with the DNA obtained from the Exhibit - 24 (blood sample of deceased Riya).

DNA could not be obtained from the Exhibits - 3, 5, 6, 11, 13, 14, 20 , 26 and 27."

(names masked)

DW1 Shranjeet Kaur is the wife of the appellant. Interestingly, she is a witness of inquests. According to her, on the date of incident, she saw that PW1 the mother of victims was taking her daughters to the doctor. She and her husband also followed her. Doctor declared the victims brought dead, thereafter, both the victims were again kept inside the room; Police also reached. In the evening her husband, the appellant was called by the Police. According to her, appellant is innocent, who is a Granthi in Gurudwara; he is a religious man. DW 2 Ajay Kumar Sharma states that he cannot believe that the appellant could do such a heinous offence.

This case is based on circumstantial evidence. The law of circumstantial evidence is very clear, the chain of circumstances should be complete, it may lead to one and only a conclusion that it is the accused and accused alone, who has committed the crime. It should not leave any doubt about the implication of the accused concerned.

In the case of Ganpat Singh Vs. State of Madhya Pradesh (2017) 16 SCC 353, the Hon'ble Court has held as hereunder:-

"9. ......... In a case which rests on circumstantial evidence, the law postulates a twofold requirement. First, every link in the chain of circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt. Second, all the circumstances must be consistent only with the guilt of the accused. The principle has been consistently formulated thus:

"The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.

See Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487; Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172 : (2006) 3 SCC (Cri) 512; Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, p. 689, para 12 : (2007) 1 SCC (Cri) 80; Venkatesan v. State of T.N. (2008) 8 SCC 546, p. 460, para 8 : (2008) 3 SCC (Cri) 546; Sanjay Kumar Jain v. State of T.N., (2008) 8 SCC 456, p. 460, para 8 : (2008) 3 SCC (Cri) 546; Sanjay Kumar Jain v. State of Delhi, (2011) 11 SC 733, p. 737, para 13 : (2011) 3 SCC (Cri) 608; Madhu v. State of Kerala, (2012) 2 SCC 399 : (2012) 1 SCC (Cri) 892; Munna Kumar Upadhyay v. State of A.P., (2012) 6 SCC 174, p. 188, para 25 : (2012) 3 SCC (Cri) 42 and Vivek Kalra v. State of Rajasthan, (2014) 12 SCC 439 : (2014) 6 SCC (Cri). 782"

Instant case is based on DNA report. It is based on the fact that from the dead body of the elder victim, white hair were found. Sample of blood of the appellant was taken. The DNA obtained from the hair match with the DNA obtained from the blood sample of the appellant. The DNA obtained from school belt and a T-shirt of the elder daughter also match with DNA obtained from the blood sample of the appellant. The law of DNA examination is settled as reproduced, hereinbefore. DNA report is accurate unless, it is shown that it is dented. It is to be relied upon but a few facts definitely required to be proved by the prosecution. In the instant case the first fact is about the recovery of white hair from the dead bodies.

In the instant case, DNA has not been taken from some internal parts of the body of the victims. According to the prosecution there were hair in the fist of the elder victim. Crime scene has to be examined. The dead body of the victims were lying in their room. PW9 S.I. Rajesh Singh has stated that the size of the room was about 10-12 feet. Although PW8 A.S.P Niharika Bhatt states that the room was just about 8 x 8 square feet. This was the only room available with the mother of the victims, where she was staying alongwith her three children. Now, in a room of about 10 x 10 feet, where there were other household articles also and two dead bodies were lying. A relative of the victims namely, PW2 for the first time noticed the dead bodies, when she returned with the brother of the victims on 15.06.2017. She has stated that the house was bolted from outside. She opened it; entered in the house; noticed the dead bodies; shook them; try to make the victims drink water but did not succeed. It is then she informed the mother of the victims PW1. Thereafter, PW1 the mother of the victims also reached at the spot. PW3 is another relative of the victims, she also reached at the spot. PW7 S.I. Manohar Singh Rawat, PW8 A.S.P Niharika Bhatt and PW9 S.I. Rajesh Singh were also there at the spot. Although PW7 S.I. Manohar Singh Rawat in his cross-examination has stated that when he reached at the spot, he did not allow anyone to enter the room except the Police, but PW9 S.I. Rajesh Singh in his statement given during investigation told that there were many family members and neighbours inside the room. He confirmed before Court that he gave such a statement. He could not tell, as to how many persons were there in the room but he states that there were police personnel; persons from the forensic team in the room.

PW14 Dr. Manoj Kumar Agarwal was the head of the forensic team. According to him, there were four persons in the team, they took photographs also. It will be discussed in a short while. It means four persons from the forensic team PW7 S.I. Manohar Singh Rawat, PW8 A.S.P Niharika Bhatt and PW9 S.I. Rajesh Singh alongwith Police constable Geeta Sharma and PW4 Const. Ranjeet Kaur and PW1, mother of the victims alongwith family members were inside the room. It shows that before any inspection, the crime scene was not secured. It was contaminated by many persons before arrival of the Police. This fact is established by the evidence adduced by the prosecution itself. In fact, PW4 Const. Ranjeet Kaur states in her cross-examination, in para no.3, that when she reached at the spot she saw that the mother of the victims holding the younger victim in her lap. Till then inquest was not done because according to inquest reports PW4 Const. Ranjeet Kaur and a Geeta Sharma inspected the dead bodies. It clearly reveals that before any inspection was done or inquest was prepared, the dead bodies of the victims were touched, displaced and the room was filled with many persons including police personnel.

This fact may be seen from another angle also. Appellant was also present in the crowd; he was a neighbour; his wife DW1 Shranjeet Kaur happens to be a witness to both the inquests; she has signed the inquest reports. PW3 the relative of the victim has stated about it. In fact, at page no.6 para no.1 of her statement, she states that the mother of the victims would leave her children in the Gurudwara. The crime scene was totally disturbed, in fact, it was destroyed. In this background, the recovery of hair has to be evaluated.

The first person, who noticed the dead bodies was the son of the PW1 and her relative PW2. The son of the PW1 has not been examined. He is a young boy of 8 years. PW2 the relative of the victims, has not stated that she noticed any white or black hair either on the fist or on the body of the victims. In fact, she shook well the victims, she tried to make them drink water but did not notice anything. There is another witness of inquest, PW4 Const. Ranjeet Kaur, she has not stated that any hair was found from the bodies of the victims. Who found this hair? Const. Geeta Sharma has not been examined and what is interesting to note here is that in Ex A-14 memo of taking into custody hair and school belt, it is recorded that Const. Geeta Sharma found hair in the fist or body of the deceased of the victim. Why was she not examined?

There is another aspect of the matter. Both the inquest reports Ex A-7 and A-19 do not reveal that hair was detected at the time of inquest, the reasons are as hereunder:-

i.          Description of the dead bodies; injuries and search, all is given in the inquest reports of both the victims and thereafter, the witnesses gave their opinion and signed the inquest report. Till the witnesses to the inquests had signed it, there is no mention of any hair being found on the dead bodies or in the fist of the elder victim. If hair was detected at the time of inquest why it was not recorded before the witnesses to the inquests had signed it?

ii. Once the witnesses, in both the inquest reports signed, the writer of the inquest reports gives his opinion and then writes further that the forensic team was called at the spot. Who inspected and found the hair. It means, initially the hair was not detected but when the forensic team arrived, they detected the hair.

This aspect has to be seen further. From the police team PW7 S.I. Manohar Singh Rawat states that he was the first person to reach the spot. In his examination done on 21.05.2015, he states that the forensic team reached at the spot about 01:00-01:30 PM. This witness had reached prior to it. According to inquest of the elder victim, when under the direction of FSL team inspection was again done, Constable Geeta Sharma found hair. Geeta Sharma has not been examined. Inspection of the dead bodies at the time of inquest was also done by Const. Geeta Sharma & PW4 Const. Ranjit Kaur. PW4 Const. Ranjit Kaur has not stated about recovery of any white hair from the fist or body of the elder victim. PW14 Dr. Manoj Kumar Agarwal is the head of the forensic team. He did not take any swab, he has not stated about recovery or taking of any hair, in his presence. Why is it so, it creates a lot of doubt in the prosecution story about recovery of white hair from the fist and body of the elder victim as well.

PW2, who first reached at the spot has not stated about any hair in the fist or on the person of any of the victims. Although PW1 the mother of the victims and PW3 have stated about hair and PW7 S.I. Manohar Singh Rawat has also stated about it but it is not inspiring confidence. Recovery of hair from the crime scene is in much in doubt. In fact, according to PW8 A.S.P Niharika Bhatt only the members from the forensic team did inspect the dead bodies and police officers were not inspecting it (statement of PW8 A.S.P Niharika Bhatt page 3 mid). Inquest reports speak otherwise. According to it, with the help of PW4 Const. Ranjit Kaur and Geeta Sharma, dead bodies were inspected.

In view of above discussion, this Court is of the view that the prosecution has not been able to prove beyond reasonable doubt that any white hair was recovered either from the fist or the body of either the elder victim or the younger victim. The recovery of hair from the person of the elder victim is much in doubt. It is not reliable.

DNA report has also been questioned, qua sample of blood taken from the appellant. It is argued that the prosecution failed to prove, as to when was the blood sample of the appellant was taken. On behalf of the State, learned counsel would submit that an application was moved on 19.06.2017 for taking blood sample of the appellant for the purpose of DNA profiling by PW8 A.S.P Niharika Bhatt, which is Ex A-17 on the record and the Court fixed 21.06.2017 for taking the sample. It is argued that on that date blood sample of the appellant was taken, which was then taken to FSL by PW12 Const. Vikash Kaur. It is also argued that even the appellant, in answer to question no. 35, in his examination under Section 313 of the Code, has admitted that his blood sample was taken before the court and at Rishikesh. There is no discrepancy on his account.

It is true that according to PW8 A.S.P Niharika Bhatt, she moved an application on 19.06.2017 before the court concerned for taking blood sample of the appellant, for the purpose of DNA profiling and it is also true that on that application, the court below fixed 21.06.2017 for taking blood sample. But prosecution has not even shown as to who took the blood sample and when it was taken. It appears that blood sample was taken because Ex A-27 is the letter of the court concerned, addressed to FSL for examination and according to it, blood sample of the appellant was also forwarded for examination which was sealed by the doctor. But, this document does not reveal that this blood sample was taken in the presence of the court. What court recorded in Ex A-27 is that a blood sample, sealed by the doctor is being forwarded to FSL for examination. In the original record of the case, there is a remand sheet of 21.06.2017. It is also not on record that on that date blood sample of the appellant was taken. According to remand sheet, the appellant was produced before the court and he was remanded, to judicial custody till 29.06.2017. It is also true that the appellant in his examination under Section 313 of the Code has stated that his blood sample was taken before the court. But, he has also stated, in the same breath that his blood sample was also taken in Rishikesh. At the end of his examination, he also states that when he was arrested and detained at the police station, glasses were scratched over his skin and blood was taken. The statement will be read as a whole.

It was the duty of the prosecution to establish that blood sample of the appellant was taken, properly stored and transmitted to FSL. PW8 A.S.P Niharika Bhatt has not stated about it. PW12 Const. Vikash Kaur took the articles to FSL but she has not stated that in her presence blood sample of the appellant was taken. It is a matter of DNA profiling. There cannot be any assumption that the blood sample of the appellant was properly taken, safely stored and transported to FSL. Prosecution has not adduced any evidence, whatsoever even to show that blood sample of the appellant was taken on 21.06.2017. Prosecution has not even shown as to who took the blood sample. How it was stored? PW14 Dr. Manoj Kumar Agarwal has proved the DNA report. In page no.2 first paragraph from third line, this witness states that he had received the alleged blood sample of the appellant which was undated. This witness has used the word "alleged" and has also stated that it was undated. It doubts the authenticity (to the effect as to whether the sample sent to FSL was that of the appellant) of the blood sample which was sent for forensic examination. Prosecution utterly failed to establish that on 21.06.2017 blood sample of the appellant was properly taken, safely stored and transmitted to FSL.

Crime scene was totally destroyed before any inspection could have been made. The dead bodies were displaced. A small room where the dead bodies were lying was flooded by many persons including Police, relatives and forensic team. Hair and belt were also not recovered, till the inquest reports had been signed by the witnesses. According to inquest reports, after arrival of FSL team, a belt was recovered from near the dead bodies. PW4 Const. Ranjeet Kaur and PW14 Dr. Manoj Kumar Agarwal have not stated about recovery of this belt. A T-shirt was also allegedly sent for forensic examination.

If belt was lying at the crime scene why it was not recovered till the inquests had been signed by the witnesses. PW14 Dr. Manoj Kumar Agarwal has not stated about recovery of it by his team. Crime scene was not secured. This Court has already held that recovery of hair is doubtful. What biological material was detected on the belt or the T-shirt? As stated, the prosecution has not been able to prove as to who took blood sample of the appellant? How it was taken and stored? Therefore, this Court is of the view that DNA report regarding these articles cannot, under the facts and circumstances of the case, be termed as accurate. Thus, DNA report cannot be held reliable to connect the appellant with the crime.

This Court has held that the prosecution failed to establish that blood sample of the appellant was properly taken, safely stored and transported to FSL. The DNA report also concludes that the DNA obtained from the frock of the younger victim match with the DNA obtained from the appellant. The crime scene was totally destroyed, from which part and from which substance, the DNA from the frock of younger victim was obtained, it is not clear. PW4 Const. Ranjeet Kaur has categorically stated that when she reached at the place of incident, she found that the younger victim was in the lap of PW1 her mother. This part of DNA report in any manner also does not support the prosecutions case.

When was the appellant arrested and when was he medically examined? According to PW8 A.S.P Niharika Bhatt appellant was arrested on 15.06.2017 at 06:30 PM, when he confessed his guilt. She has proved the arrest and information memo Ex A-16. In Ex A-16, at column 10, the time and venue of arrest is not recorded. In column 13 injuries have not been recorded. What is written is that the appellant was medically examined, this is very important. At column 15 in this memo Ex A-16 it is stated that the information of arrest was given to the wife of the appellant at 08:25 PM on that date. It means, this memo was prepared, when information was given about the arrest of the appellant to his wife. As stated, details of injuries are not given in this memo. What is written is that the appellant was medically examined.

PW5 Dr. B.S. Tolia examined the appellant on 15.06.2017 at about 10:05 PM. He proved the report Ex A-4. He noted two injuries which have been mentioned, hereinbefore. Now, if medical examination of appellant was done at 10:05 PM at 15.06.2017, how in the arrest memo Ex A-16, it was already written that the appellant was medically examined because the arrest/information memo was prepared sometimes after 08:26 PM, when information of the arrest was given to the wife of the appellant. It simply means that the entry at column no. 13 in Ex A-16 was made subsequent to medical examination of the appellant after 10:05 PM, why? Why the injuries were not noted in the arrest/information memo, when the appellant was arrested? It is PW8 A.S.P Niharika Bhatt the investigating officer, who has to note the injuries, if any, on the person of the appellant, when he was arrested but it was not done, which doubts the entire procedure of arrest and medical examination and somehow create doubts on the prosecution story also.

PW5 Dr. B.S. Tolia found two injuries, on the person of the appellant. Namely, one abrasion and one lacerated wound. In his last sentence of examination-in-chief PW5 Dr. B.S. Tolia states that the injuries may be caused due to teeth bite but it is not recorded in the medical examination report Ex A-4. How can PW5 Dr. B.S. Tolia say that the injuries could be caused by teeth bite? Did he recall it? In his cross-examination, para no.2, PW5 Dr. B.S. Tolia states that whenever there is a teeth bite sign, the sign would be on two places. In the instant case, it was not on two places. Statement of PW5 Dr. B.S. Tolia that the injuries might be caused due to teeth bite is without any basis. If it is teeth bite did the Investigating Officer try to ascertain, whose teeth bite is it? Did any biological samples from the wound were taken? Did PW5 Dr. B.S. Tolia try to get such samples? Nothing is explained.

Site plan has been proved by PW8 A.S.P Niharika Bhatt the Investigating Officer, it is Ex A-15. In this site plan at serial no. 3, it is stated that the field unit took swab of the blood stains from the wall. PW14 Dr. Manoj Kumar Agarwal, categorically, in the last para of his examination told that no swabs were prepared in his presence. Why is this discrepancy? It all creates doubt in the prosecution case, with regard to collection of biological evidence.

The incident has been brutal. Two young girls have been brutally killed and what shakes the conscience is that the young victim of 4 years was brutally sexually assaulted also. It was an act of wanton lust & beastly passion. Whatever name may be given to it but it was done, in the most diabolic manner. The victims were eliminated for no fault of theirs. The investigation and prosecution, in this case was not done in a professional manner. It was a case, where the assaulters were not known. It happened in a city and the year was 2017. Technological advancement and its tools would have helped the Investigating Officers to collect the evidence and place them before the Court. The place of incident is at a distance of 50 meters from the police station. Why immediately crime scene was not secured? Why forensic team was not taken at the spot before any police personnel could inspect the dead bodies?

PW8 A.S.P Niharika Bhatt is the Investigating Officer. She herself has not stated about any photograph and when asked in cross-examination, in first paragraph middle line, she very casually would say that she does not remember whether any videography or photography was done or not. PW1 the first informant states that photographs were taken (page 8 para 3). PW7 S.I. Manohar Singh Rawat states that he did not photograph the crime scene. PW9 S.I. Rajesh Singh in his cross-examination says that forensic team had taken photographs. PW10 Ins. Praveen Singh Koshyari is the Investigating Officer, who submitted the charge-sheet. He tells that he did not ask the former Investigating Officer as to whether photographs were taken or not. PW14 Dr. Manoj Kumar Agarwal is the head of the forensic team. He tells it that they had taken photographs of the crime scene with the help of digital camera and those photographs had been handed over to the Investigation Officer. Where are those photographs? During hearing of this matter, when directed, some photographs were placed before the Court. But, the fact remains that the photographs were neither produced nor proved during the trial court. Even otherwise the forensic team reached at the spot when the crime scene had already been destroyed. Investigating Officer expressed ignorance about the photograph, whereas PW14 Dr. Manoj Kumar Agarwal, the leader of the forensic team tells that he had handed over the photographs to the Investigating Officer. Why the Police Officer, who first reached at the spot did not take photographs of the crime scene? In the light of the directions of the Hon'ble Supreme Court in the case of State of Gujrat Vs. Kishan Bhai (2014) 5SCC 108, the role of PW8 Niharika Bhatt needs to be enquired in to and after affording her an opportunity of hearing, necessary action, if any, should be taken, as per law.

In the instant case, prosecution mainly relied upon the DNA report. This Court has already held that in the instant case the DNA report, is not reliable to connect the appellant with the crime. On behalf of the prosecution, it is argued that a day before the day of incident, when appellant was trying to indulge in a conversation with the victims, the elder victim felt disconcerted. PW1, the mother of the victim has stated about it. According to PW1, it was told to her by PW2 (statement of PW1 at page no2 para no.2). But PW2 has not stated even a single word that the elder victim felt disconcerted, when the appellant talked to them on 14.06.2017. Therefore, the statement of PW1, about it cannot be read against the appellant for the following reasons:-

(i.)        The statement of PW1 on this count is hearsay.

(ii.)       PW2 has not stated that on 14.06.2017, the elder victim felt disconcerted, when the appellant talked to them.

(iii.)      The presence of appellant near the house of the victim was obvious, they were neighbours. According to PW2, when on 14.06.2017 she was in the house of PW1 with the victims, the appellant had

enquired it from the victims, as to who PW2 is? This statement sounds natural in view of the fact that they were neighbours and according to PW3, PW1 used to leave her children in the Gurudwara. Appellant was Granthi in the Gurudwara.

(iv.)      If someone feels disconcerted, the Court, cannot conveniently derive any conclusion on it's basis because it is a mental or psychological condition. It is very hard to read it and it is further harder to understand the reasons for such mental or psychological state.

Recovery of hair from the persons of the deceased has been held to be doubtful. The crime scene, in the instant case was not secured. It was destroyed. Prosecution has not proved that the blood samples of the appellant was taken properly, stored safely and transmitted to FSL. The DNA report in the instant case is not reliable. There is no other evidence. Therefore, on basis of foregoing discussion, this Court is of the view that the prosecution has not been able to prove the case beyond reasonable doubt against the appellant Sardwar Parwan Singh. The appeal deserves to be allowed and the impugned judgment and order deserves to be set aside.

The appeal is allowed.

The impugned judgment and order dated 22/23.08.2018, is set aside. Appellant Sardar Parwan Singh is acquitted of the charges under Sections 376 and 302 IPC and Section 5 read with 6 of The Protection of Children from Sexual Offences Act, 2012.

Criminal Reference No. 3 of 2018 is answered in terms of the orders, as above.

Appellant is in jail. He be released forthwith, if not wanted in any other case, subject to his furnishing personal bonds and two sureties, each of the like amount to the satisfaction of the court concerned under Section 437-A of the Code.

Let a copy of the judgment alongwith Lower Court Record be sent to the court below for compliance.