MOHD. FIROZ versus STATE OF MADHYA PRADESH

[2022] 19 S.C.R. 168

[2022] 19 S.C.R.

MOHD. FIROZ

STATE OF MADHYA PRADESH

(Criminal Appeal No. 612 of 2019)

APRIL 19, 2022

[UDAY UMESH LALIT, S. RAVINDRA BHAT ANDBELA M. TRIVEDI, JJ.]

Penal Code, 1860 – Ss. 302, 376(2)(i), 376(2)(m), 363, 366,C376A – Protection of Children from Sexual Offences Act, 2012(POCSO) – ss. 5 (i), 5 (m), 6 – Evidence Act, 1872 – s. 106 – Codeof Criminal Procedure, 1973 – ss. 304, 313 – Rape and sexualassault on the young child-victim – Appellant-accused along withone another accused person was convicted for death sentence andlife imprisonment, respectively, by the trial court for the offences u/Dss. 302, 376(2)(i), 376(2)(m), 363, 366 IPC r/w. s. 5(i) r/w. s. 6 ands.5(m) r/w. s. 6 of the POCSO Act – High Court, while dismissingthe appeal, affirmed the order of conviction by trial court regardingthe appellant herein but acquitted the other accused person –Appellant has, thus, preferred the present appeal – Whether theEtrial had been conducted in fair manner by following the dueprocedure and the prosecution had proved the guilt of the accusedbeyond reasonable doubt since the case was based on circumstantialevidence- Whether the prosecution had adequately proved thecircumstance with regard to the theory of “last seen together”–Whether the prosecution had sufficiently proved the “proximity ofFtime” i.e. ‘the time gap between the victim being lastly seen with theappellant-accused and the time when she was found injured andunconscious in the field’ – Held: In the instant case, neither anyexplanation was offered by the appellant in his further statementunder Section 313 of Cr.P.C. nor any concrete defence was takenGduring the course of the cross-examination of the witnesses –Conduct of the accused in absconding away also was acircumstance duly proved by the prosecution against him – Timegap between the victim being lastly seen with the appellant-accusedand the time when she was found injured and unconscious in thefield was hardly 12 hours– The said injuries had resulted into herHdeath – Prosecution had proved the close proximity of time when

the victim was last seen with the appellant and when the victim wasfound unconscious and in injured condition, which ultimatelyresulted into her death – Nothing on record to suggest that the dueprocedure was not followed or there was deprivation of the legalaid or legal assistance to accused –Views taken by the Courts belowwith regard to the conviction of the appellant for offences chargedagainst him, deem it proper to commute, and accordingly commutethe sentence of death for the sentence of imprisonment for life, foroffence punishable u/s.302 IPC – While balancing the scales ofretributive justice and restorative justice, appellant-accused,sentenced to imprisonment for period of twenty years instead ofimprisonment for the remainder of his natural life for the offenceunder section 376A, IPC.

Sentencing - Restorative Justice- One of the basic principlesof restorative justice is to give an opportunity to the offender torepair the damage caused, and to become socially usefulindividual when he is released from the jail- maximum punishmentprescribed may not always be the determinative factor for repairingthe crippled psyche of the offender- Hence, while balancing thescales of retributive justice and restorative justice.

Partly allowing the appeal, the Court

HELD: The first and foremost circumstance regarding thevisit of the appellant along with ‘R’ on the date and time as allegedwas very crucial and that was admitted by the appellant. By suchadmission, even his identity had stood proved. There cannot begainsaying that no conviction could be based on the statement ofthe accused recorded under section 313 of the Cr.P.C. and theprosecution has to prove the guilt of the accused by leadingindependent and cogent evidence, nonetheless it is equallysettled proposition of law that when the accused makesinculpatory and exculpatory statements, the inculpatory part ofthe statement can be taken aid of to lend credence to the case ofprosecution. In the instant case also, though the conviction ofthe appellant-accused could not be made merely on his admissionof the circumstance of his visit to the house of the informant onthe previous day evening of the fateful day, such admission couldcertainly be taken aid of to lend assurance to the evidence of theprosecution [Paras 23 & 24][188-E-G; 190-E]

170SUPREME COURT REPORTS

A1.2 The next and most important circumstance was withregard to the theory of “last seen together” propounded by theprosecution. In this regard, if the version of the witnessesexamined by the prosecution are closely appreciated, thereremains no shadow of doubt that it was duly proved that after ‘H’refused ‘R’ to permit the appellant-accused to stay at their house,B‘R’ had left the house, but the appellant continued to sit in thecourtyard of the house of the informant. It was also proved thatat that time the victim along with her cousins was playing in thesaid courtyard, and after sometime the appellant-accused, victimand RK were not seen at the courtyard. According to the motherCof the victim, when she was searching for her daughter, she sawthat RK was coming with polythene bag containing bananas,and RK told her that the said bananas were given by Bhaijaani.e., the appellant, and that he (i.e. Bhaijaan) had taken the victimalong with him. The said RK had fully corroborated the saidversion of RK, in his deposition before the Court and the fruitDvendor had also stated that the appellant along with two childrenhad come to his shop to purchase the bananas and that he hadgiven three bananas to RK and asked him to leave home, and hehad taken the victim with him. The evidence of these witnessescould not be disbelieved merely because they happened to beEthe relatives of the informant. Pertinently there was no concretedefence taken during the cross-examination of any of thesewitnesses examined by the prosecution. Some minor discrepanciesin the evidence of the witnesses could not be said to be majorcontradictions to throw away the case of the prosecutionoverboard or disbelieve the prosecution. It was also duly provedFthat the appellant-accused had taken the victim with him fromthe shop of fruit vendor in the evening hours of the allegedincident, which was very strong circumstance proved againstthe accused. [Para 25][190-F-H; 191-A-E]

1.3 Once the theory of “last seen together” was established,Gthe accused was expected to offer some explanation as to underwhich circumstances he had parted the company of the victim. Ithardly needs to be reiterated that in the criminal jurisprudence,the entire burden of proving the guilt of the accused rests on theprosecution, nonetheless if the accused does not throw any lightH

upon the facts which are proved to be within his special knowledgein view of Section 106 of the Evidence Act, such failure on thepart of the accused may also provide an additional link in thechain of circumstances required to be proved against him. Ofcourse, Section 106 of the Evidence Act does not shift the burdenof the prosecution on the accused, nor requires the accused tofurnish an explanation with regard to the facts which are especiallywithin his knowledge, nonetheless furnishing or non-furnishingof the explanation by the accused would be very crucial fact,when the theory of “last seen together” as propounded by theprosecution is proved against him, to know as to how and whenthe accused parted the company of the victim. [Para 26][191-E-H; 192-A]

1.4 In the instant case, though it was duly proved that theappellant-accused had taken the victim with him from the shop offruit vendor, neither any explanation was offered by the appellantin his further statement under Section 313 of Cr.P.C. nor anyconcrete defence was taken during the course of the cross-examination of the witnesses. It is pertinent to note that afterthe alleged incident, he had run away to his native place at Bihar.Admittedly he was arrested therefrom and was brought back afterobtaining the transit remand from the concerned court atBhagalpur. The said conduct of the accused in absconding awayalso was circumstance duly proved by the prosecution againsthim. [Para 30][194-F-H]

1.5 So far as the proximity of time is concerned, coupledwith the other evidence, the prosecution had proved the closeproximity of time when the victim was last seen with the appellantand when the victim was found unconscious and in injuredcondition, which ultimately resulted into her death. [Paras 31 &32][195-E-F]

1.6 The next issue with regard to the trial having not beenconducted in fair manner, there is nothing on record to suggestthat the due procedure was not followed or that the appellant-accused had suffered on account of deprivation of the legal aid orlegal assistance to him. The trial court did provide legal assistanceto both the accused by appointing lawyer at the expense of the

AState, who had thoroughly cross-examined all the witnessesexamined by the prosecution, and had also examined twowitnesses on behalf of accused R. Apart from the fact that nosuch contention was raised during the course of trial or evenbefore the High Court in the two separate appeals filed by theaccused represented by two separate lawyers, no such contentionBhas been raised by the appellant-accused even in the memorandumof the present appeal. The oral submission made by the learnedSenior Advocate appearing on behalf of the accused at the fagend of his arguments that there was no fair trial conducted, withoutsubstantiating the said submission, cannot be entertained. EvenCotherwise, it may noted that during the course of recording thefurther statement, the appellant-accused had responded to theincriminating circumstances brought to his notice, after fullyunderstanding them as transpiring from the answers recordedby the court. It is possible that the incident in question wouldhave created an anguish amongst the public at large as alsoDamongst the media, nonetheless in absence of any material onrecord, no inference could be drawn that because of such mediapressure, the trial was not conducted in fair manner. [Paras 33,34][195-G; 196-E-G; 197-A-B]1.7 Having regard to the proved circumstances on record,Emore particularly the circumstances that preceded and followedfrom the point the deceased-victim was seen last together withthe appellant-accused, the court has no hesitation in holding thatthe prosecution had proved beyond reasonable doubt all thecircumstances individually and also proved the circumstancesFforming chain, so conclusive as to rule out the possibility of anyother hypothesis except the guilt of the appellant-accused. It wasduly proved that while committing the barbaric acts of rape andsexual assault on the young child-victim aged about 04 years, theappellant-accused had inflicted bodily injuries as mentioned inthe post-mortem report which had caused her death. The trialGcourt had rightly convicted the appellant-accused for the offencespunishable under sections 302, 376(2)(i), 376(2)(m), 363, 366 ofIPC and section 5(i) read with section 6 and section 5(m) readwith section 6 of the POCSO Act. The said order of conviction

was affirmed by the High Court; and is being further affirmed bythis Court. [Para 36][197-F-H; 198-A]

1.8 The next question that falls for consideration is withregard to the sentence to be imposed on the appellant. Whileaffirming the view taken by the courts below with regard to theconviction of the appellant for the offences charged against him,This Court deem it proper to commute, and accordingly commutethe sentence of death for the sentence of imprisonment for life,for the offence punishable under Section 302 IPC. Since, Section376A IPC is also applicable to the facts of the case, consideringthe gravity and seriousness of the offence, the sentence ofimprisonment for the remainder of appellant’s natural life wouldhave been an appropriate sentence, however, this Courtisreminded of what Oscar Wilde has said - “The only differencebetween the saint and the sinner is that every saint has pastand every sinner has future”. One of the basic principles ofrestorative justice as developed by this Court over the years,also is to give an opportunity to the offender to repair the damagecaused, and to become socially useful individual, when he isreleased from the jail. The maximum punishment prescribed maynot always be the determinative factor for repairing the crippledpsyche of the offender. Hence, while balancing the scales ofretributive justice and restorative justice, this Courtdeems itappropriate to impose upon the appellant-accused, the sentenceof imprisonment for period of twenty years instead ofimprisonment for the remainder of his natural life for the offenceunder section 376A, IPC. The conviction and sentence recordedby the courts below for the other offences under IPC and POCSOAct are affirmed. It is needless to say that all the punishmentsimposed shall run concurrently. [Paras 37 & 43][198-B; 200-D-G; 201-A]

Masalti vs. State of U. P. AIR 1965 SC 202 : [1964]SCR 133; Ajay Singh vs. State of Maharashtra (2007)12 SCC 341 : [2007] 7 SCR 983; K. Anbazhagan vs.The superintendent of Police & Ors. (2004) 3 SCC 767: [2003] 5 Suppl. SCR 610; Zahira Habibullah Sheikh& Anr. Vs. State of Gujarat & Ors. (2006) 3 SCC 374 :[2006] 2 SCR 1081 – referred to.

From the Judgment and Order dated 15.07.2014 of the High Courtof Madhya Pradesh at Jabalpur in Criminal Appeal Nos. 09, 2920 and3132 of 2013.

B. H. Marlapalle, Sr. Adv., Ms. Shreya Rastogi, Ms. HariniRaghupathy, Satya Mitra, Advs. for the Appellant.

P. V. Yogeswaran, AAG, Pashupathi Nath Razdan, Ms. SamridhiJain, Astik Gupta, Ms. Sneh Bairwa, Prakhar Srivastav, Advs. for theRespondent.

The Judgment of the Court was delivered by

BELA M. TRIVEDI, J.

1. The present appeal was initially filed by the appellant-BibiSidhika, the mother of the accused Mohd. Firoz, challenging the legalityand validity of the impugned common judgement and order dated15.07.2014 passed by the High Court of Judicature, Madhya Pradesh atJabalpur, in the Criminal Reference No. 09 of 2013, Criminal AppealNo. 2920 of 2013 and Criminal Appeal No. 3132 of 2013. During thependency of the present appeal, the said appellant having expired, theaccused Firoz has been substituted as the appellant in view of the orderpassed by this Court on 21.10.2021.

Case of Prosecution : -

2. The case of the prosecution as unfolded before the trial courtwas that on 17.04.2013, at about 06:30 PM, one Rakesh Choudhary(original accused no. 2) came to the house of the informant Ramkumari(mother of the victim) along with an unknown person (the presentappellant-original accused no. 1) and requested the said Ramkumari andher mother Himmabai to provide an accommodation to the said unknownperson for day, however, Himmabai refused to provide suchaccommodation. Thereafter, Rakesh Choudhary left and his friend satfor while at the courtyard of the house of the complainant, where thevictim aged about four years was playing with her brother Ramkishanand other cousins. After sometime, Ramkumari found that her daughterwas missing and the other person (the accused no. 1) was also notthere. She along with others tried to search her daughter at the nearbyplaces, however, her daughter was not found. After sometime Ramkishancame with some bananas and told Ramkumari that Bhaijaan (accusedno. 1) had taken the victim with him. Ramkumari therefore went to thepolice station Ghansaur for lodging missing report. On the next dayi.e., on 18.04.2013 morning, some villagers found that one girl child waslying unconscious in the field of one Badri Yadav. On receiving suchinformation, Shyam Yadav, the brother of Ramkumari went to the spot

Aand found that the victim was lying unconscious and blood was oozingfrom her mouth and nostrils. He immediately took the victim first to thePolice Station and then to the Government Hospital at Ghansaur, however,since the condition of the victim was deteriorating, she was shifted tothe hospital at Jabalpur. The Doctors who examined and treated herconfirmed that rape was committed on the victim. Considering herBserious condition, the victim was taken to the Care Hospital at Nagpur,however, on 29.04.2013, the victim expired at the said hospital. Dr.Pradeep Gangadhar Dixit, professor and H.O.D. in Forensic MedicineDepartment, Medical College, Nagpur along with his colleaguesconducted the postmortem of the dead body of the victim at about 10.35CAM on 30[th] April 2013 and noted the external and internal injuries on thebody of the victim. The final cause of death was stated to be“bronchopheumonia and cerebral hypoxia, which was caused bysmothering the nose and mouth.”3. In the meantime, Mr. R.D. Barthi, In-charge Inspector, PoliceDStation, Ghansaur, on the missing person report given by RamkumariBai had started investigation and found that the accused Firoz Khan (thepresent appellant), who was working in Jhabua Power Plant had takenaway the victim deceitfully. He therefore registered an FIR being no. 68of 2013 against the accused at about 06:40 AM on 18.04.2013 for theoffences under Section 363 and 366 of IPC. The accused RakeshEChoudhary came to be arrested on 20[th] April 2013 and the appellant-accused Firoz was arrested on 23[rd] April, 2013 from Husainabad, PoliceStation Mojahidpur, Balsaur, Bhagalpur, Bihar.

4. The investigating officer after completing the investigation laidthe charge-sheet against both the accused before the trial court. TheFaccused Mohd. Firoz was charged for the offences under sections 363,366, 376(2)(i), 376(2)(m) and 302 of IPC and under section 5(i), 5(m)and Section 6 of the Protection of Children from the Sexual OffencesAct, 2012 (hereinafter referred to as the POCSO Act), and the accusedRakesh Choudhary was charged for the offences under sections 363Gand 366 r/w Section 34 and under Section 109 of IPC and under Section16/17 of the POCSO Act. Both the accused having abjured their guiltand claimed to be tried, the prosecution examined as many as 34 witnessesto prove their guilt. Both the accused denied the allegations levelledagainst them in their respective further statements recorded under section313 of Cr.PC and stated that they were falsely implicated in the case.H

The accused no. 2 Rakesh Choudhary in his defence examined twowitnesses i.e., DW-1 Virendra Choudhary and DW-2 Gopal PrasadAhirwar. The Sessions Court at Seoni after appreciating the evidenceon record convicted both the accused for the offences charged againstthem and awarded death sentence to the accused Firoz for the offenceunder section 302 of IPC and directed to undergo rigorous imprisonmentfor period of 07 years and pay fine of Rs. 2000/- for the offence undersection 363, to undergo rigorous imprisonment for period of 10 yearsand pay fine of Rs. 2000/- for the offence under section 366 of IPC, toundergo life imprisonment and pay fine of Rs. 2000/- for the offencesunder sections 376(2)(i), 376(2)(m) of IPC and under sections 5(i)r/w 6& 5(m) r/w 6 of POCSO Act. The Sessions Court directed the accusedRakesh Choudhary to undergo rigorous imprisonment for period of 07years and pay fine of Rs. 2000/- for the offences under section 363/34,to undergo rigorous imprisonment for period of 10 years and pay fineof Rs. 2000/- for the offences under section 366/34 and to undergo lifeimprisonment and pay fine of Rs. 2000/- for the offence under section109 of IPC and for the offences under section 16/17 of POCSO Act.

5. The reference made by the Sessions Court to the High Courtof M.P. at Jabalpur, for the confirmation of the death sentence to theaccused-Firoz was registered as Criminal Reference No. 09 of 2013.The accused Mohd. Firoz had also filed an appeal being Criminal AppealNo. 2920 of 2013 and the accused Rakesh Choudhary had filed an appealbeing Criminal Appeal No. 3132 of 2013 before the High Court. TheHigh Court vide the impugned common judgement and order dated15.07.2014 allowed the Criminal Appeal No. 3132 of 2013 filed by theaccused Rakesh Choudhary and acquitted him from the charges levelledagainst him, however, dismissed the Criminal Appeal No. 2920 of 2013filed by the accused Mohd. Firoz and confirmed the death sentenceawarded to him. Being aggrieved by the same, the appellant has preferredthe present appeal before this Court.

Evidence: -

6. In order to prove the guilt of the accused, the prosecution hadexamined three sets of witnesses. In the first set, the relatives andacquaintances of the informant- Ramkumari, mother of the victim, wereexamined. The informant Ramkumari deposed inter alia that on 17[th]April, 2013 at about 7.00 p.m., when she came home after finishing herwork, she saw that one person (the accused-Firoz Khan) was sitting on

Aa chair in the courtyard of her house and Rakesh Choudhary (the otheraccused) was sitting on the platform of the courtyard. According to her,Rakesh Choudhary was telling her mother Himmabai that “AmmaBhaijaan will sleep here”, however, her mother refused. After the saidconservation, she did not know where the said Choudhary had gone butBhaijaan (Firoz) kept sitting on the chair. At that time, her daughtersBPooja, Madhu, her brother’s son- Ramkishan and her sister’s son Nileshall were playing in the courtyard. She went inside the house and aftersome time when she came out, she saw that her daughter Pooja and herbrother’s son Ramkishan were not in the courtyard, and the said FirozBhaijaan was also not seen. She therefore started searching Pooja andCRamkishan, and she saw Ramkishan coming with bananas in polythenebag. On being inquired by her as to where Pooja was, Ramkishan toldher that Bhaijaan had taken Pooja along with him. She thereafter continuedto search Pooja but could not find her. She, therefore, along with hersister Jyoti went to the Police Station, Ghansaur to lodge the report. Thesaid report of missing person was lodged at about 20:35 at the policeDstation, Ghansaur, (Exhibit P-1). She further deposed before the Courtthat on the next day, the persons who go out to defecate in open came toher house and told her brother Shyam that one girl was lying unconsciousin the field. Her brother, therefore, went to the field and found that thevictim was lying unconscious there and blood was oozing from her noseEand genital organs. Thereafter, she alongwith her mother Himmabai andher brother Shyam took her daughter Pooja to the police station and thento the Ghansaur Hospital however Pooja remained unconscious. Herdaughter, thereafter, was taken to the Medical College, Jabalpur, fromGhansaur Hospital and then to Nagpur by air for treatment, where shewas admitted in the Care Hospital. Her daughter was treated for aboutF08 days in the said hospital and she died on 29[th] April, 2013. She furtherdeposed that the doctors of all the places like Ghansaur, Jabalpur andNagpur, where her daughter had undergone the treatment had told thata rape was committed on her and that an attempt was made to murderher by strangulating her neck. After her death, the Nagpur police hadGregistered report (Exhibit P-2). During the course of her deposition,she had identified the accused-Firoz present in the Court and stated thathe was the same Bhaijaan. She also stated that the said Firoz had rapedPooja and inflicted injuries which caused her death. The said version ofPW-1 Ramkumari was fully supported by the witnesses PW-2 MadhuYadav who happened to be the sister of the deceased, PW-6 HimmabaiH

who happened to be the grandmother of the deceased and mother ofRamkumari, PW-7 Preeti Yadav who happened to be the younger sisterof Ramkumari. They had stated to be present in the house when boththe accused Rakesh and Firoz had come to the house of Ramkumari.

7. The prosecution, in order to prove that the victim was last seentogether with the accused-Firoz had examined PW-31 Ramkishan Yadav.The said Ramkishan aged about four years happened to be the son ofPW-5 Shyam Yadav i.e., brother of Ramkumari. Ramkishan deposedbefore the Court inter alia that Firozbhai had come to their home andthen had taken him and Pooja to fruit shop. Firozbhai had given himthree bananas and biscuits and thereafter asked him to go home, however,had taken Pooja with him. Identifying the accused-Firoz sitting in theCourt, Ramkishan had stated that he was Firoz Bhaijaan who had takenher sister Pooja with him and thereafter Pooja was found dead. Hespecifically denied in the cross-examination that after Firoz Bhaijaangave bananas and biscuits to him, Pooja also came along with him.

8. PW-4 Nitin Namdev was the fruit seller. He deposed that on17.04.2013 at about 7.00 pm, one person wearing white shirt and blackfull pant had come with one girl and boy, both aged about four years,and had purchased six bananas from his shop for Rs.20/-. He alsoidentified the accused-Firoz sitting in the Court and stated that he hadcome to his shop. He further stated that the said person had given threebananas to the boy and asked him to go home and had taken the fouryears old girl with him, and then had gone towards the crossing. On thenext day he came to know that person named Firoz working in thePower Plant had committed rape on the girl and had killed her, and thathe was the same person who had bought bananas from his shop. In thecross-examination, he had stated that after some days of the incident,the Tehsildar had asked him to come to school, where he had identifiedthe accused Firoz.

9. PW-5 Shyam Yadav who happened to be the brother ofRamkumari and maternal uncle of the victim, had stated that he was notstaying with his mother and sister, however, on the day, when the victimwas found missing, he had stayed back with them. On the next daymorning, the Village Kotwar Santosh Das had come and informed himthat girl was lying in the field of Badri Yadav. He therefore went to thefield along with the Kotwar and saw that the girl-Pooja was lyingunconscious and blood was oozing from her nostrils. He also saw her

Aunderwear, skins of bananas and some money lying near her body. Hetook Pooja first to the police station Ghansaur and from there took her tothe Ghansaur Hospital for treatment. According to him, since her conditionwas very critical, she was taken to the Hospital at Jabalpur and thereafterto the hospital at Nagpur for treatment, however, she died there.

B10. In the second set of witnesses, the prosecution had examinedthe doctors who had treated the victim. PW-17 Dr. Bharti Sonkeshariya,the Medical Officer at the Community Health Center, Ghansaur hadexamined the victim at about 7.30 a.m on 18.04.2013. She had statedthat the patient was unconscious, and blood was oozing from her noseand also from her vagina. As her condition was very critical, she wasCreferred to the Medical College, Jabalpur. Her Medical Report wasmarked as Exhibit P-36. PW-20 Dr. Bharti Sahu, Assistant Professor atMedical College, Jabalpur had stated that on 18.04.2013 at about 9.30a.m. one girl named Pooja was brought for treatment by the policeconstable Dilip Rajput of police station, Ghansaur and she had foundDthat Pooja was unconscious and was having seizures. After referring tothe injuries, she had opined in the medical report (Exhibit P-40) that thevictim’s hymen was found ruptured due to sexual intercourse and that arape was committed on her. PW-21 Dr. Hemant, Private MedicalPractitioner (Pediatrician) at Jabalpur Hospital, Jabalpur had alsoexamined Pooja and carried out C.T. Scan. He had found swelling in herEbrain. She was kept on the ventilator, but her condition was very criticaland, therefore, she was shifted to Nagpur.

11. PW-29 Dr. Deepak Ramratan Goyal, Pediatric Surgeon at theCare Hospital, Nagpur had deposed that on 20[th] April, 2013 at about11.00 p.m. Kumari Pooja Yadav was brought to the Hospital by airFambulance from Jabalpur Research Centre. The girl was unconsciousand was kept on artificial respiration. She was immediately admitted inthe Intensive Care Unit of Children. He had found swelling in her braindue to deficiency of oxygen, and several injuries on her vaginal area.According to him, in spite of all the efforts, the girl could not be savedGand she died on 29[th] April, 2013 at about 7.45 P.M. In his opinion, thecause of death was “Hypoxic Ischemic Encephalopathy with vaginalinjury with cardiorespiratory arrest” i.e., she died due to cardiorespiratoryarrest due to deficiency of oxygen in the brain, due to pressing of mouthand neck and due to excessive injury in the genital organ. The medicalreport given by him was marked as Exhibit P-50.H

12. The post-mortem of the victim was conducted by PW-24 Dr.Pradeep Gangadhar Dixit, Professor and H.O.D in Forensic MedicineDepartment, Medical College, Nagpur, on 30[th] April, 2013, along withhis colleagues. He had recorded the following in the post-mortem note(Exhibit P-44) -

“1. The dead was wearing shirt and Pajama of the Hospital.There were 8 teeth in upper portion and 10 temporary teethon the lower portion of mouth. Right upper incisor tooth andleft upper lateral incisor tooth were absent. Left upper centralincisor tooth was loose with blue colored swollen gums of itssurroundings.

1. On examination of the external genitals, I had found thatlabia majora and labia minora contused, oedematous withblue discolouration. Superficial partially healed vulvalaceration present at 6 “O” clock position of size 0.3 cm x0.3 cm. Vaginal canal oedematous and hyperemic. Hymentorn at 3.6 and 7 O’clock position. Dilatation of hymenalopening. Urethral meatas oedematuous and bruised present.

2. The following injuries were found on the body ofdeceased: -

1. Partially healed lacerated wound present over upperlip in midline involving mucosal area of size 0.2. cm x 0.2cm muscle deep surrounding area contused, bluish.

2. Partially healed lacerated wound present over lower lipin midline involving mucosal area of size 0.2 x 0.2 cmmuscle deep surrounding area contused, bluish.

3. Abrasion present over lateral aspect of neck on rightside, 3 cm below tip of right mastoid bone of seize 2 cm x 2cm dark brown.

4. Abrasion present 2 cm below of injury no. 3 of size 2 cmx 0.3 cm.

5. Abrasion present over area overlying right submandibularregion of size 0.3 cm x 0.3 cm.

6. Abrasion present over nape of neck on right side at thelevel of C-7 vertebra of size 0.4 cm x 0.4 cm.

7. Abrasion present over right intra scapular region of size0.2 cm x 0.2 cm.

8. Abrasion present over left scapular region of size 1.5cm x 0.5 cm.

9. Multiple abrasions present over lower portion of stomachat right side of size varying from 0.3 cm x 0.2 cm to 0.2.cm x 0.1 cm.

10. Multiple linear abrasions present over posterior aspectof left thigh, middle 1/3[rd] part over an area of size 4 cm x3 cm of size varying from 4 cm x 0.2 cm to 3 cm x 0.1 cm.

11. Tracheotomy wound present over anterior aspect ofneck with stiches in situ which is done for ventilator.

12. hole over right side of next which is made to assessthe central venous pressure.

13. Puncture marks present over both elbow of hands,upper portion of right wrist, dorsum of right hand and bothlegs for administering I.V. fluids.

14. On conducting internal examination of the body, I hadfound the following: -

1. Symptoms of pneumonia were found in her right lung.Blood clotted over internal muscles of the neck. All theorgans were found congested. Brain was found

edematous.”

13. The said doctor had deposed that all the injuries found on thebody were ante-mortem and the opinion regarding the cause of deathwas kept reserved. Thereafter, on 15.05.2013, the histopathology report(Exhibit P-46) was received from the Pathology Department, MedicalCollege, Nagpur, in which the final cause of death reported was“bronchopneumonia and cerebral hypoxia, which was caused bysmothering the nose and mouth.”

14. The accused Firoz was medically examined by PW-18 Dr.Dipendra Sallame, the Medical Officer at C.H.C. Lakhnadon, DistrictSeoni on 25.04.2021 and after his examination, he had opined that theaccused Firoz was capable to do sexual intercourse. Doctor had preparedand sealed two semen slides of the semen of Mohd. Firoz and had also

sealed black coloured underwear of the said Firoz encircling whitespot, and had handed over the same to the said Constable. His examinationreport was exhibited as Exhibit P-39. PW-23 Dr. Vinod Dahayat, theMedical Officer at District Hospital, Seoni to whom the accused Firozwas brought on 04.05.2013, had taken his blood sample for the D.N.A.test. He had also attested the photograph of accused Firoz. The saidDoctor had identified the accused Firoz sitting in the Court by statingthat he was the same person whose blood sample was taken and whosephotograph was attested by him.

15. PW-25 Dr. Pankaj Shrivastava, Scientific Officer at F.S.L.,Sagar had received the Articles relating to the present case through theletter dated 21.04.2013 of the Superintendent of Police, Seoni broughtby the Constable, Police Station Ghansaur on 24.04.2013, and throughthe letter dated 04.05.2013 of Superintendent of Police Station, Seonibrought by the Constable, Police Station Ghansaur on 06.05.2013 forconducting the D.N.A. test. He had stated that at the time of examination,all the Articles were found in sealed condition and the seals were foundintact. He had also stated about the method used by him to obtain theD.N.A. from the received Articles and also about the opinion (ExhibitP-47) given by him on the basis of D.N.A. examination. He had opinedas under -“(i)Identical female D.N.A. profile was obtained from thesource frock and vaginal smear slide of Pooja Yadav (Article“A”), frock and swab (Article “F”) and blood sample (Article“G”).

(ii)The D.N.A. profile obtained from the hair (Article “B”)found from the place of incident and D.N.A profile obtainedfrom the source blood sample (Article “I”) of the accusedFiroz is identical, which confirms this fact that these hairstrands are of the accused Firoz.”

16. The last set of witnesses examined by the prosecutioncomprised of the Police Witnesses, panch Witnesses and the Tehsildarwho had conducted the T.I. Parade. PW-13 Mohammad Sultan was theAssistant Sub Inspector at the Police Station, Ghansaur. He alongwiththe DSP R.N. Parteti had found the hair strands and skins of bananas inthe field and had sealed them as per the seizure memo (Exhibit P-10)dated 20.04.2013. He had also stated that on 21.04.2013, he had received

Afrom the Constable Dilip, sealed yellow envelope containing Frockand vaginal slides of the deceased in presence of the witnesses and hadprepared the Seizure Memo (Exhibit P-29). PW-15 Head ConstableNiyaz Ahmad at Police Station Ghansaur had registered the missingperson report at Sanha no. 747 as stated by Smt. Ramkumari Yadav on17.04.2013 at 20:35.B

17. PW-30 S. Ram Maravi, the Sub Inspector, In-charge PoliceStation at Police Station Kindrai, District Seoni (M.P.) was part of theteam constituted by the Superintendent of Police, Seoni for search andarrest of the accused Firoz. According to this witness, he alongwithothers had gone to Bhagalpur, Bihar and after collecting the call detailsCof the accused, his location was found out with the cooperation of thelocal police of Bhagalpur. The accused Firoz was arrested from placenear mosque situated near the house of his aunt on 23.04.2013, andwas brought back after obtaining the transit remand from the concernedCourt at Bhagalpur as per the order at Exhibit P-50.

18. PW-33 In-charge Police Station, Ghansaur Mr. R.D. Barthihad conducted the investigation of the Missing Person Case No. 10/13,and during the course of investigation, it was found that the allegedoffences were committed by the accused-Firoz. He therefore hadregistered the Crime No. 68/13 for the offence under Section 363, 366Eof I.P.C. (Exhibit P-60) against the accused. He had stated about theinvestigation carried out by him and about the arrest of the accusedRakesh Choudhary. The D.S.P. Mr. R.N. Parteti who had carried outthe further investigation was examined as PW-34. He had deposed aboutthe details of investigation carried out by him till the chargesheet wasfiled in the case. PW-16 Tehsildar at Seoni Mr. Sudhir Jain had conductedFthe identification parade of the accused-Mohd. Firoz. According to him,the witnesses Smt. Ramkumari, Preeti Yadav, Nitin Namdev andHimmabai had identified the accused during the course of the T.I. Parade.

19. Significantly the accused-Firoz in his further statement recordedunder Section 313 of Cr.P.C. had admitted about his visit to the house ofGthe victim along with the other accused Rakesh Choudhary for makingan inquiry about Shyam. The accused had also admitted having told themother of Shyam that he (accused) had come from Gorakhpur and wasstaying in the house of Dassi Yadav. The accused also admitted abouthis arrest as per the arrest memo Exhibit P-54 and about he having beenHbrought to Ghansaur after obtaining the transit remand from the ChiefJudicial Magistrate, Bhagalpur. The other accused-Rakesh Choudhary,(who has been acquitted by the High Court), in his further statement hadadmitted to the extent that he had gone along with the accused-Firoz tothe house of Ramkumari, however, according to him after showing thehouse to the accused Firoz, he had left the house. He in support of hisdefence had examined two witnesses i.e., D.W-1 Virendra Choudharywho was residing adjacent to his house and DW-2 Gopal Prasad Ahirwarwho had footwear shop situated adjacent to the footwear shop ofVirendra Choudhary. The Court is not required to deal in detail with thesaid evidence adduced on behalf of the accused-Rakesh, as he has alreadybeen acquitted by the High Court. His acquittal having not been challengedby the prosecution before this Court, the same has attained finality.

Submissions:

20. Learned Senior Counsel Mr. B.H. Marlapalle, appearing forthe accused-appellant appointed through the Supreme Court LegalServices Committee, while fairly not disputing the visit of the appellant-accused at the house of the victim on the date and time as per the caseof the prosecution and also not disputing the medical reports of the victim,tried to highlight certain discrepancies appearing in the evidence of thewitnesses examined by the prosecution. Placing reliance upon the decisionof this Court in the case ofMasalti vs. State of U. P.1, he submitted thatwhile appreciating the evidence of the partisan and interested witnesses,the Court should be very careful in weighing such evidence. He alsorelied upon various decisions of this Court to substantiate his submissionthat the case of the prosecution being dependent on the circumstantialevidence alone, the entire chain was required to be proved beyondreasonable doubt by leading cogent evidence, which the prosecution hadfailed to prove. The trial court had also failed to bring to the knowledgeof the accused the clear questions with regard to the incriminatingevidence against the accused. The “last seen theory” as propounded bythe prosecution was also not proved which could connect the accusedwith alleged crime. Merely because the accused had admitted his visitat the place of the victim, no inference could be drawn against theaccused that he had committed the alleged crime of rape and murder.Invoking the provisions of Section 313 of Cr.P.C. he submitted that thesaid provisions must be observed faithfully and fairly. The attention of

Athe accused should be drawn to the specific points in the charge and inthe evidence on which the prosecution claims that the case is made outagainst him so that he may be able to give such explanation as he maydesire to give.

In this regard, Mr. B.H. Marlapalle has placed reliance on theBobservations made by this Court in the case of Ajay Singh vs. State ofMaharashtra2. Mr. Marlapalle also submitted that there was greatmedia pressure on the investigating agency when the incident occurredand, therefore, the investigating officer without carrying out an in-depthinvestigation hurriedly submitted the charge-sheet against the accused.Since no advocate was ready to appear for the accused, the trial courtChad appointed common advocate for both the accused from the legalservice committee, however no fair trial was conducted. The purpose ofthe criminal trial is to conduct fair and impartial trial without beinginfluenced by the extraneous consideration. In this regard, he has placedreliance on the decisions of this Court in the case ofK. Anbazhagan vs.DThe superintendent of Police & Ors.3 and in the case of ZahiraHabibullah Sheikh & Anr. Vs. State of Gujarat & Ors.421. Per contra, the learned Advocate Mr. P.V. Yogeswaran,appearing for the respondent-State vehemently submitted that this wasone of the heinous and despicable crimes committed by the appellant-Eaccused. The trial court and the High Court having relied upon the cogentevidence adduced by the prosecution and convicted the appellant, thisCourt may not re-appreciate the evidence which has already been properlyappreciated by the said two courts. According to him, the appellant-accused by admitting his visit at the house of the victim along with RakeshChaudhary, admitting his arrest as per the case of the prosecution andFby not disputing the medical reports of the victim had relieved, half ofthe burden of the prosecution to prove the allegations against him. Hefurther submitted that every minor contradiction or discrepancies in theevidence of the witnesses cannot be termed as major contradictionsrequiring the court to throw the evidence of prosecution overboard. ItGwas duly proved that the victim was lastly seen in the company of theaccused and it was within special knowledge of the accused as to whathappened to the victim after he took her with him from the shop of fruit

2 (2007) 12 SCC 3413 (2004) 3 SCC 767H4 (2006) 3 SCC 374

vendor. The time gap between the victim being lastly seen with theaccused and the time when she was found unconscious in the field wasso proximate an inference was required to be drawn that it was theaccused alone who had committed the alleged crime. Lastly, he submittedthat the grievance of mis-trial or trial having not been conducted in fairmanner, was not taken by the appellant-accused either during the courseof the trial before the trial Court or even before the appellate stage, andthe same is sought to be raised for the first time before this Court whichshould not be entertained.

-Analysis and Findings :

22. It is true that the entire case of the prosecution rested on thecircumstantial evidence, inasmuch as though certain facts were admittedby the appellant-accused in his further statement under section 313 ofCr.P.C., like his visit to the house of the victim on the previous eveningof the alleged incident, and he having been arrested and brought backfrom Bhagalpur, Bihar, as per the transit remand granted by the concernedcourt, there was no eye witness to the alleged incident. The law withregard to the appreciation of evidence when the case of the prosecutionhinges on the circumstantial evidence is very well settled. The five goldenprinciples laid down by this Court in the case of Sharad BirdhichandSarda vs. State of Mahashtra5and followed in catena of decisions, areworth reproducing:-

“153. close analysis of this decision would show that thefollowing conditions must be fulfilled before case againstan accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is tobe drawn should be fully established.

It may be noted here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only grammatical but legaldistinction between “may be proved” and “must be or shouldbe proved” as was held by this Court in Shivaji SahabraoBobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observationswere made.

ACertainly, it is primary principle that the accused must beand not merely may be guilty before court can convict andthe mental distance between ‘may be’ and ‘must be’ is longand divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with theBhypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that theaccused is guilty,

(3) the circumstances should be of conclusive nature andtendency,

C(4) they should exclude every possible hypothesis except theone to be proved, and

(5) there must be chain of evidence so complete as not toleave any reasonable ground for the conclusion consistentDwith the innocence of the accused and must show that in allhuman probability the act must have been done by theaccused.”

23. Keeping in mind the above set of principles, let us examinewhether the prosecution had proved beyond reasonable doubt, the entireEchain of circumstances, not leaving any link missing for the accused toescape from the clutches of law. The first and foremost circumstanceregarding the visit of the present appellant along with Rakesh Chaudharyon the date and time as alleged was very crucial and that was admittedby the appellant. By such admission, even his identity had stood proved.There cannot be gainsaying that no conviction could be based on theFstatement of the accused recorded under section 313 of the Cr.P.C. andthe prosecution has to prove the guilt of the accused by leadingindependent and cogent evidence, nonetheless it is equally settledproposition of law that when the accused makes inculpatory andexculpatory statements, the inculpatory part of the statement can beGtaken aid of to lend credence to the case of prosecution. This Courtwhile dealing with the issue of inculpatory and exculpatory statementsof the accused made under Section 313 Cr.P.C. has made very aptobservations in case of Mohan Singh vs. Prem Singh & Anr.6

“27. The statement made in defence by the accused underSection 313 CrPC can certainly be taken aid of to lendcredence to the evidence led by the prosecution, but only apart of such statement under Section 313 of the Code ofCriminal Procedure cannot be made the sole basis of hisconviction. The law on the subject is almost settled thatstatement under Section 313 CrPC of the accused can eitherbe relied in whole or in part. It may also be possible to rely onthe inculpatory part of his statement if the exculpatory part isfound to be false on the basis of the evidence led by theprosecution. See Nishi Kant Jha v. State of Bihar [(1969) 1SCC 347 : AIR 1969 SC 422] : (SCC pp. 357-58, para 23)

“23. In this case the exculpatory part of the statement inExhibit 6 is not only inherently improbable but iscontradicted by the other evidence. According to thisstatement, the injury which the appellant received wascaused by the appellant’s attempt to catch hold of thehand of Lal Mohan Sharma to prevent the attack on thevictim. This was contradicted by the statement of theaccused himself under Section 342 CrPC to the effectthat he had received the injury in scuffle with aherdsman. The injury found on his body when he wasexamined by the doctor on 13-10-1961 negatives boththese versions. Neither of these versions accounts for theprofuse bleeding which led to his washing his clothes andhaving bath in River Patro, the amount of bleeding andthe washing of the bloodstains being so considerable asto attract the attention of Ram Kishore Pandey, PW 17and asking him about the cause thereof. The bleedingwas not simple one as his clothes all got stained withblood as also his books, his exercise book and his beltand shoes. More than that the knife which was discoveredon his person was found to have been stained with bloodaccording to the report of the Chemical Examiner.According to the post-mortem report this knife could havebeen the cause of the injuries on the victim. Incircumstances like these there being enough evidence toreject the exculpatory part of the statement of theappellant in Exhibit 6 the High Court had acted rightly

in accepting the inculpatory part and piercing the samewith the other evidence to come to the conclusion that theappellant was the person responsible for the crime.”

“30. The statement of the accused under Section 313 CrPCis not substantive piece of evidence. It can be used forappreciating evidence led by the prosecution to accept orreject it. It is, however, not substitute for the evidence of theprosecution. As held in the case of Nishi Kant [(1969) 1 SCCC347 : AIR 1969 SC 422] by this Court, if the exculpatory partof his statement is found to be false and the evidence led bythe prosecution is reliable, the inculpatory part of his statementcan be taken aid of to lend assurance to the evidence of theprosecution. If the prosecution evidence does not inspireDconfidence to sustain the conviction of the accused, theinculpatory part of his statement under Section 313 CrPCcannot be made the sole basis of his conviction.”

24. In the instant case also, though the conviction of the appellant-accused could not be made merely on his admission of the circumstanceEof his visit to the house of the informant on the previous day evening ofthe fateful day, such admission could certainly be taken aid of to lendassurance to the evidence of the prosecution.

25. The next and most important circumstance was with regardto the theory of “last seen together” propounded by the prosecution. InFthis regard, if the version of the witnesses examined by the prosecution,more particularly of PW-1 Ramkumari i.e. the mother of the victim,PW-6 Himmabai i.e. the grandmother of the victim, PW-7 Preeti Yadavi.e. the aunt of the victim and PW-31 Ram Kishan are closely appreciated,there remains no shadow of doubt that it was duly proved that afterHimmabai refused Rakesh Chaudhary to permit the appellant-accusedGto stay at their house, Rakesh Chaudhary had left the house, but theappellant continued to sit in the courtyard of the house of the informant-Ramkumari. It was also proved that at that time the victim along withher cousins was playing in the said courtyard, and after sometime theappellant-accused, victim and Ram Kishan were not seen at the courtyard.According to Ramkumari, the mother of the victim, when she wasH

searching for her daughter, she saw that Ram Kishan was coming witha polythene bag containing bananas, and Ram Kishan told her that thesaid bananas were given by Bhaijaan i.e., the appellant, and that he (i.e.Bhaijaan) had taken the victim along with him. The said Ram Kishanexamined as PW-31, though young boy, had fully corroborated the saidversion of Ram Kumari, in his deposition before the Court. The fruitvendor, Nitin Namdev (PW-4), had also stated that the appellant alongwith two children had come to his shop to purchase the bananas and thathe had given three bananas to Ram Kishan and asked him to leavehome, and he had taken the victim with him. The evidence of thesewitnesses could not be disbelieved merely because they happened to bethe relatives of the informant, as sought to be submitted by learned SeniorAdvocate Mr. Marlapalle for the appellant. Pertinently there was noconcrete defence taken during the cross-examination of any of thesewitnesses examined by the prosecution. Some minor discrepancies inthe evidence of the witnesses could not be said to be major contradictionsto throw away the case of the prosecution overboard or disbelieve theprosecution. Nothing more could be expected from Ram Kishan whowas aged about four years than what he had stated in his deposition,more particularly, when his testimony was found to be truthful and whenthe identity of the accused was not in dispute. Hence, it was also dulyproved that the appellant-accused had taken the victim with him fromthe shop of fruit vendor Nitin Namdev in the evening hours of the allegedincident, which was very strong circumstance proved against theaccused.26. Once the theory of “last seen together” was established, theaccused was expected to offer some explanation as to under whichcircumstances, he had parted the company of the victim. It hardly needsto be reiterated that in the criminal jurisprudence, the entire burden ofproving the guilt of the accused rests on the prosecution, nonetheless ifthe accused does not throw any light upon the facts which are proved tobe within his special knowledge in view of Section 106 of the EvidenceAct, such failure on the part of the accused may also provide an additionallink in the chain of circumstances required to be proved against him. Ofcourse, Section 106 of the Evidence Act does not shift the burden of theprosecution on the accused, nor requires the accused to furnish anexplanation with regard to the facts which are especially within hisknowledge, nonetheless furnishing or non-furnishing of the explanationby the accused would be very crucial fact, when the theory of “last

Aseen together” as propounded by the prosecution is proved against him, toknow as to how and when the accused parted the company of the victim.

27. In case of Rajender vs. State (NCT of Delhi)[7], this Court hassuccinctly dealt with the doctrine of “last seen together” in the light ofSection 106 of the Evidence Act. The relevant observations read as under:

“12.2.4. Having observed so, it is crucial to note that thereasonableness of the explanation offered by the accused asto how and when he/she parted company with the deceasedhas bearing on the effect of the last seen in case. Section106 of the Evidence Act, 1872 provides that the burden ofCproof for any fact that is especially within the knowledge of aperson lies upon such person. Thus, if person is last seenwith the deceased, he must offer an explanation as to howand when he parted company with the deceased. In otherwords, he must furnish an explanation that appears to thecourt to be probable and satisfactory, and if he fails to offerDsuch an explanation on the basis of facts within his specialknowledge, the burden cast upon him under Section 106 isnot discharged. Particularly in cases resting on circumstantialevidence, if the accused fails to offer reasonable explanationin discharge of the burden placed on him, such failure byEitself can provide an additional link in the chain ofcircumstances proved against him. This, however, does notmean that Section 106 shifts the burden of proof of criminaltrial on the accused. Such burden always rests on theprosecution. Section 106 only lays down the rule that whenthe accused does not throw any light upon facts whichFare specially within his/her knowledge and which cannotsupport any theory or hypothesis compatible with hisinnocence, the court can consider his failure to adduce anexplanation as an additional link which completes the chainof incriminating circumstances.”

G28. In Satpal vs. State of Haryana[8], this Court observed,

“6. We have considered the respective submissions and theevidence on record. There is no eyewitness to the occurrence

7 (2019) 10 SCC 623H8 (2018) 6 SCC 610

but only circumstances coupled with the fact of the deceasedhaving been last seen with the appellant. Criminaljurisprudence and the plethora of judicial precedents leavelittle room for reconsideration of the basic principles forinvocation of the last seen theory as facet of circumstantialevidence. Succinctly stated, it may be weak kind of evidenceby itself to found conviction upon the same singularly. Butwhen it is coupled with other circumstances such as the timewhen the deceased was last seen with the accused, and therecovery of the corpse being in very close proximity of time,the accused owes an explanation under Section 106 of theEvidence Act with regard to the circumstances under whichdeath may have taken place. If the accused offers noexplanation, or furnishes wrong explanation, absconds,motive is established, and there is corroborative evidenceavailable inter alia in the form of recovery or otherwiseforming chain of circumstances leading to the only inferencefor guilt of the accused, incompatible with any possiblehypothesis of innocence, conviction can be based on the same.If there be any doubt or break in the link of chain ofcircumstances, the benefit of doubt must go to the accused.Each case will therefore have to be examined on its own factsfor invocation of the doctrine.”

29. Following the above ratio, in the case of Surajdeo Mahto vs.The State of Bihar[9], it was held -

“29. The case of the prosecution in the present case heavilybanks upon the principle of ‘Last seen theory’. Briefly put,the last seen theory is applied where the time interval betweenthe point of when the Accused and the deceased were lastseen together, and when the victim is found dead, is so smallthat the possibility of any other person other than the Accusedbeing the perpetrator of crime becomes impossible.Elaborating on the principle of “last seen alive”, 3-judgebench of this Court in the case of Satpal v. State of Haryana(2018) 6 SCC 610, has, however, cautioned that unless thefact of last seen is corroborated by some other evidence, thefact that the deceased was last seen in the vicinity of the

Accused, would by itself, only be weak kind of evidence.The Court further held:

...Succinctly stated, it may be weak kind of evidence byitself to found conviction upon the same singularly. But whenit is coupled with other circumstances such as the time whenthe deceased was last seen with the Accused, and the recoveryof the corpse being in very close proximity of time, the Accusedowes an explanation under Section 106 of the Evidence Actwith regard to the circumstances under which death may havetaken place. If the Accused offers no explanation, or furnishesa wrong explanation, absconds, motive is established, andthere is corroborative evidence available inter alia in the form

of recovery or otherwise forming chain of circumstancesleading to the only inference for guilt of the Accused,incompatible with any possible hypothesis of innocence,conviction can be based on the same. If there be any doubt orbreak in the link of chain of circumstances, the benefit ofdoubt must go to the Accused. Each case will therefore haveto be examined on its own facts for invocation of the doctrine.

30. We may hasten to clarify that the fact of last seen shouldnot be weighed in isolation or be segregated from the otherevidence led by the prosecution. The last seen theory shouldrather be applied taking into account the case of theprosecution in its entirety. Hence, the Courts have to not onlyconsider the factum of last seen, but also have to keep inmind the circumstances that preceded and followed from thepoint of the deceased being so last seen in the presence of theAccused.”

30. In the instant case, though it was duly proved that the appellant-accused had taken the victim with him from the shop of fruit vendor,neither any explanation was offered by the appellant in his furtherstatement under Section 313 of Cr.P.C. nor any concrete defence wasGtaken during the course of the cross-examination of the witnesses. It ispertinent to note that after the alleged incident, he had run away to hisnative place at Bihar. Admittedly he was arrested therefrom and wasbrought back after obtaining the transit remand from the concerned courtat Bhagalpur. The said conduct of the accused in absconding away alsoHwas circumstance duly proved by the prosecution against him.

31. So far as the proximity of time is concerned, it is required tobe noted that Ramkumari, the mother of the victim, on being informedby Ram Kishan (PW-31) that Bhaijaan i.e. the appellant had taken thevictim with him , the said Ramkumari along with her mother Himmabaiand others had immediately gone to the police station at Ghansaur tolodge missing person report (Exhibit P-1). It is true that there was nodirect allegation made by them against the appellant in the said report,however, at that point of time, the informant was not aware about the ill-intention of the appellant, and no such crime was reportedly committed.It was only when the victim, on the next day early morning, was found inthe field of Badri Yadav lying unconscious, the FIR was registered againsthim. The victim was also immediately taken to the hospital at Ghansaurfor her treatment, and thereafter, taken to the hospital at Jabalpur andNagpur for better treatment as her health was deteriorating. As per themedical reports, she was raped and the injuries were found on the privateparts of her body. She had remained unconscious all through out. Sheexpired on 29[th] April, 2013 and the final cause of death reported was“bronchopneumonia and cerebral hypoxia which was caused bysmothering the nose and mouth.” Thus, the time gap between the victimbeing lastly seen with the appellant-accused and the time when she wasfound injured and unconscious in the field was hardly 12 hours. The saidinjuries had resulted into her death.

32. Thus, coupled with the other evidence, the prosecution hadproved the close proximity of time when the victim was last seen withthe appellant and when the victim was found unconscious and in injuredcondition, which ultimately resulted into her death. The DNA profileobtained from the hair found from the place of incident and the DNAprofile obtained from the source of blood sample of the appellant wasidentical, and confirmed that the hair strands were of the appellant only,as per the opinion at Exhibit P-47 given by P.W-25 Dr. Pankaj Srivastava,Scientific Officer, FSL, Sagar.

Fair Trial: -

33. Coming to the next issue raised by the learned Senior AdvocateMr. Marlapalle with regard to the trial having not been conducted in fairmanner, it may be noted that the concept of fair trial has been enshrinednot only in Article 21 and 39 of the Constitution of India, but also inSection 304 of the Code of Criminal Procedure. Free and fair trial is

ABC

Asine qua non of Article 21, and after the formative decision inManekaGandhi vs. UOI10, it has been made clear that the procedure in criminaltrials must be right, just and fair and not arbitrary, fanciful or oppressive.Article 39A provides for free legal aid to the poor and weaker sectionsof the society and ensures justice for all. Section 304 of Cr.P.C. furtherprovides that where in trial before the Court of Session, the accused isBnot represented by pleader, and where it appears to the court that theaccused has no sufficient means to engage pleader, the court shallassign pleader for his defence at the expense of the State. This Courtalso time and again has emphasised the right to fair trial by the courts,in the letter and spirit of the right to life and personal liberty flowing fromCthe various guarantees enshrined in the Constitution of India. We mayhasten to add at this stage that right to fair and speedy trial applies asmuch to the victim as the accused. Right to get speedy justice applies tothe victim as well. Hence considering the gravity and seriousness of thecrime, if the trial is expedited by the Court, it could not to be said thatsuch trial was not fair to the accused. Of course, while expediting theDtrial, it is imperative on the Court to see that the due procedure is followedduring the course of trial.

34. So far as the facts of the present case are concerned, there isnothing on record to suggest that the due procedure was not followed orthat the appellant-accused had suffered on account of deprivation of theElegal aid or legal assistance to him. The trial court did provide legalassistance to both the accused by appointing lawyer at the expense ofthe State, who had thoroughly cross-examined all the witnesses examinedby the prosecution, and had also examined two witnesses on behalf ofaccused Rakesh Choudhary. Apart from the fact that no such contention

Fwas raised during the course of trial or even before the High Court inthe two separate appeals filed by the accused represented by twoseparate lawyers, no such contention has been raised by the appellant-accused even in the memorandum of the present appeal. The oralsubmission made by the learned Senior Advocate appearing on behalf of

the accused at the fag end of his arguments that there was no fair trialGconducted, without substantiating the said submission, cannot beentertained. Even otherwise, it may noted that during the course ofrecording the further statement, the appellant-accused had responded tothe incriminating circumstances brought to his notice, after fully

understanding them as transpiring from the answers recorded by thecourt. It is possible that the incident in question would have created ananguish amongst the public at large as also amongst the media, nonethelessin absence of any material on record, no inference could be drawn thatbecause of such media pressure, the trial was not conducted in fairmanner.

35. Though, it is true that the “Equality, Justice and Liberty” is thetrinity of fair trial recognized in the administration of justice, it is equallytrue that such concept of fair trial entails triangulation of interest of theaccused, the victim and the society at large. In the overzealous approachto protect the rights of the accused, the rights of the victim who is themost aggrieved should not be either undermined or neglected. Similarly,the cases involving heinous crimes, the society at large would also be animportant stake-holder. Interest of the society, which acts through theState and prosecuting agencies, should also not be treated with disdain.Therefore, the court conducting the trial/appeal is not only obliged toprotect the rights of the accused but also the rights of the victim, and theinterest of the society at large. The Judge presiding over the criminaltrial has not only to see that innocent man is not punished but has also tosee that guilty man does not escape. Both are his public duties requiredto be discharged very diligently to maintain the public confidence anduphold the majesty of the law.

Conclusion:

36. Having regard to the proved circumstances on record, moreparticularly the circumstances that preceded and followed from thepoint the deceased-victim was seen last together with the appellant-accused, the court has no hesitation in holding that the prosecution hadproved beyond reasonable doubt all the circumstances individually andalso proved the circumstances forming chain, so conclusive as torule out the possibility of any other hypothesis except the guilt of theappellant-accused. It was duly proved that while committing the barbaricacts of rape and sexual assault on the young child-victim aged about04 years, the appellant-accused had inflicted bodily injuries as mentionedin the post-mortem report which had caused her death. The court,therefore, holds that the trial court had rightly convicted the appellant-accused for the offences punishable under sections 302, 376(2)(i),376(2)(m), 363, 366 of IPC and section 5(i) read with section 6 and

Asection 5(m) read with section 6 of the POCSO Act. The said order ofconviction was affirmed by the High Court; and is being further affirmedby this Court.

37. The next question that falls for consideration is with regard tothe sentence to be imposed on the appellant. The trial court while imposingBvarious sentences for the other offences, had imposed the death penaltyfor the offence under Section 302 of IPC, which has been confirmed bythe High Court in the impugned judgment. It may be noted that since thedeath of the victim was caused due to the injuries inflicted by the appellantwhile committing offence under Section 376(2)(i) and 376(2)(m), theprovisions of Section 376A of the IPC would also get attracted whichChad come into force w.e.f. 03.02.2013 i.e.prior to the alleged incident inquestion, and which provided for wide range of punishments upto deathpenalty. The High Court in the impugned order, though made observationin this regard, did not consider it on the ground that the charge underSection 376 of IPC was not framed by the Sessions Court against theDaccused. However, it may be noted that in view of Section 215 an omissionto state the offence or its particulars in the charge could not be regardedas material, unless the accused was in fact misled by such error oromission, and it had occasioned failure of justice. In the instant case,the accused was already charged for the offence under Section 302which is punishable with death or life imprisonment, and was also chargedEfor the offences under Section 376(2)(i) and 376(2)(m), as covered inSection 376A, IPC, which is also punishable upto death sentence amongstother lesser punishments. Hence, non-mentioning of Section 376A in thecharge could not be said to have misled the accused, nor any failure ofjustice could be said to have occasioned.F

38. It may be pertinent to note that this Court in terms of the lawlaid down by the Constitution Bench in Bachan Singh Vs. State ofPunjab[11], and in tune with the directions issued in the other similar matters,touching upon the issues concerning the mitigating factors, had vide theorder dated 25.11.2021, directed the State authorities to produce on recordGthe report of the probationer officer, if any and had directed the DirectorGeneral (Prison) of the State to place on record the reports from theconcerned jails/prisons where the appellant was or is presently lodged,about his conduct and nature of work done by him while in the jail. Thecourt had also called for the psychiatric and psychological evolution

reports of the appellant. The said authorities have submitted theirrespective reports before the court.

39. The learned Senior Advocate Mr. Marlapalle relying upon thevarious decisions of this court would submit that in similar cases as thepresent one, this Court, considering the mitigating circumstances hascommuted the sentence of death penalty to the life imprisonment. Thecase on hand could not be said to be the “rarest of rare case”, where thequestion of awarding lesser punishment than the death penalty is totallyforeclosed. He implored the court to consider before imposing thesentence upon the appellant, the documents produced on record afterthe completion of the arguments, like the affidavits of the family members,the jail documents and the social inquiry report of the appellant.

40. As demonstrated earlier, once again one of the most barbaricand ugly human faces has surfaced. tiny bud like girl was smotheredby the appellant before she could blossom in this world. The monstrousacts of the appellant suffocated the victim to such an extent that she hadno option but to leave this world. Once again, all the Constitutionalguarantees have failed to protect the victim from the clutches of thedemonizing acts of the appellant. In the opinion of the Court, any sympathyshown to the appellant would lead to miscarriage of justice. However, ithas been brought to the notice of this Court that in series of judgements,this Court has not treated such case as the rarest of rare case.41. In case of Bachan Singh Vs. State of Punjab (supra), theConstitution Bench while upholding the constitutional validity of the deathsentence held inter alia that the imposition of death penalty is requiredto be guided by the paramount beacons of the legislative policy discerniblefrom sections 354 (3) and 235 (2) of the Cr.P.C., namely – (i) the extremepenalty can be inflicted only in the gravest cases of extreme culpability;and (ii) in making the choice of the sentence. In addition to the circumstancesof the offence, due regard must be paid to the circumstances of the offenderalso. InMachhi Singh vs. State of Punjab12, three-judge bench of thisCourt, after noting the principles laid down in Bachan Singh’s caseregarding the formula of “rarest of rare cases” for imposing the deathsentence, observed that the guidelines indicated in Bachan Singh’s casewill have to be culled out and applied to the facts of each individual casewhere the question of imposing death sentence arises.

A42. In the recent case of Shatrughna Baban Meshram Vs. Stateof Maharashtra[13], this courtconsidering catena of earlier decisions inthe light of section 302 read with section 376-A of IPC observed that asagainst section 302 IPC, while dealing with the cases under section 376-A IPC, wider spectrum is available for consideration by the courts asto the punishment to be awarded. In the said case, this Court negativedBthe submission made on behalf of the appellant-accused that in the casebased on circumstantial evidence, the death sentence should be commutedto the life imprisonment. However, considering the facts that the accusedhad not consciously caused any injury with an intent to extinguish the lifeof the victim, and that the offence in that case was under Clause FourthlyCof Section 300 IPC, this Court had commuted the sentence of deathpenalty to the life imprisonment. The facts and circumstances of thecase on hand are similar to the case of Shatrughna Baban Meshramwith one distinction in that, Section 376A of IPC being applicable in theinstant case.D43. Considering the above, we, while affirming the view taken bythe courts below with regard to the conviction of the appellant for theoffences charged against him, deem it proper to commute, andaccordingly commute the sentence of death for the sentence ofimprisonment for life, for the offence punishable under Section 302 IPC.Since, Section 376A IPC is also applicable to the facts of the case,Econsidering the gravity and seriousness of the offence, the sentence ofimprisonment for the remainder of appellant’s natural life would havebeen an appropriate sentence, however, we are reminded of what OscarWilde has said - “The only difference between the saint and the sinner isthat every saint has past and every sinner has future”. One of theFbasic principles of restorative justice as developed by this Court over theyears, also is to give an opportunity to the offender to repair the damagecaused, and to become socially useful individual, when he is releasedfrom the jail. The maximum punishment prescribed may not always bethe determinative factor for repairing the crippled psyche of the offender.Hence, while balancing the scales of retributive justice and restorativeGjustice, we deem it appropriate to impose upon the appellant-accused,the sentence of imprisonment for period of twenty years instead ofimprisonment for the remainder of his natural life for the offence undersection 376A, IPC. The conviction and sentence recorded by the courts

MOHD. FIROZ v. STATE OF MADHYA PRADESH

below for the other offences under IPC and POCSO Act are affirmed.It is needless to say that all the punishments imposed shall runconcurrently.

44. Before concluding, we would like to place on record ourgratitude and appreciation for the invaluable assistance provided andservices rendered by the learned Senior Advocate Mr. Marlapalle,appearing for the appellant-accused, appointed through the Supreme CourtLegal Services Committee.

45. The appeal stands allowed to the aforesaid extent.

Ankit Gyan and Anurag Bhaskar

Appeal partly allowed.

(Assisted by : Adnan Khan, LCRA)