Arvind Singh Sangwan,J

1. Reference No. 14 of 2021 has been made by the Court of Additional Sessions Judge/Special Judge (POCSO Act), Bulandshahr for confirmation of capital punishment awarded to appellant Prem Singh Prajapati in Sessions Case No. 1021 of 2020. The Jail Appeal being Capital Case No.17 of 2021 has been filed by the appellant challenging the judgment of conviction dated 9.11.2021 holding the appellant guilty of offence under Section 302, 201, 363, 376 AB of IPC and Section 5M/6 of POCSO Act and the order of sentence dated 10.11.2021, vide which the appellant was awarded death sentence to be hanged till death.

2. The Reference and Appeal were admitted. The Trial Court’s record is received and paper books are ready.

3. Heard Sri Rajiv Lochan Shukla, learned counsel for the appellant, Sri Bibhuti Narayan Singh, learned counsel for the informant and learned A.G.A. for the State.

4. With the assistance of learned counsel for the parties, the entire evidence is re-scrutinized and re-appreciated.

5. Facts of the case are that informant-Shivam Sharma (PW-1) s/o of Arun Sharma, resident of Village Harnot, Police Station – Shikarpur gave a written complaint to S.H.O. Shikarpur, District – Bulandshahr stating :

“today on 10.4.2020 at about 2.10 p.m. in the afternoon, my niece ‘K’ (name of the victim is not disclosed) daughter of Ankur Sharma aged about 2 years had gone out to play. She was searched outside but she could not be found. Please register a complaint and search my niece.

Description 1- Age 2 years and 1 month, colour fair, face round, wearing yellow coloured T-shirt and green coloured Kachcha / underwear and light blue coloured slippers.

Dated 10.07.2020

Applicant

Mobile No. 6395011916 8859281459

Shivam 8859281459 S/o Arun sharma Village Hirnot Police Station Shikarpur Bulandshahr ”

6. On the basis of above written report, Constable Sunil Kumar typed the chick F.I.R. under Section 363 of IPC and case was registered on 10.7.2020 at 19:07 hours on receiving information in the Police Station vide G.D. Number 044.

7. The distance from the place of occurrence to the Police Station was reported to be 8 kms. The case was handed over to Sub Inspector Sukhpal Singh for investigation.

8. During the investigation, the police conducted the search operation and dog squad was called at the spot to recover the victim. Posters were also pasted for searching the missing girl and intense search was conducted in the nearby houses. The victim was also searched in the nearby temples and mosques etc. Services of divers were taken to search a pond near the house of the victim. Later on, informant and his father informed the Investigating Officer that the dead body of the victim is found in the pond near the house of the appellant-Prem Singh and one Kailash. The dead body was recovered from pond situated at on back side of the Gher (Cattle House) of the father of the appellant. During investigation, it was found that the appellant kidnapped the minor child  and by committing rape on her, had thrown her in the pond and she died due to drowning. The dead body was recovered on 12.7.2020. The Panchayatnama was prepared by Sub Inspector Sukhpal Singh on 12.7.2020 at about 11.50 a.m. and it completed at 14.02 pm. The Punchs were Shivam, Akash, Devendra, Ravindra and Kushal Goswami. It was recorded in the Panchayatnama that when police party reached the pond, the dead body of the minor child was floating and her hands and feet were visible. The dead body was recovered from the water and she was identified as victim ‘K’ by the informant and other family members. On physical appearance of the dead body, her eyes were coming out, there was mark of injury on the right side of the face, the teeth were also coming out and the skin was coming out near the vagina. Therefore, as per the opinion of the Panchs, the postmortem of the dead body was got conducted. After the panel of doctors conducted the Postmortem, the DNA sample was sent to find out, if rape was committed and the exact reason of the cause of death.

9. Thereafter, the Investigating Officer prepared recovery memo, collected photographs, a forwarding letter to C.M.O. sample seal etc. and through Constable Satendra Kumar and Lady Constable Jyoti, the dead body was sent for postmortem. The postmortem was conducted by a team of Dr. Sarita Yadav, Dr. Ajay Kumar and Dr. Mukesh Singh at Babu Banarsidas Government Hospital, Bulandshahr on 12.07.2020 at 4.

10 p.m. The report was taken by the Investigating Officer. Accused Prem Singh was arrested on 13.07.2020 at 11.30 p.m. His medical examination was done at Community Health Centre, Shikarpur and samples were taken for his DNA profile and DNA Samples of deceased and accused were sent to the Forensic Science Laboratory, Lucknow. The clothes of the accused were also taken in possession. 10. After adding the provisions of the POCSO Act, further investigation was handed over to S.H.O. Umesh Kumar Pandey who recorded the statements of the witnesses and recovered clothes of the accused worn at the time of incident and also prepared the site plan. On completing the investigation, the charge-sheet against accused-Prem Singh Prajapati under Section 363, 302, 201, 376 AB of IPC read with Section 5M/6 of the POCSO Act was submitted before the Court. Thereafter, copy of the charge-sheet was supplied to the accused and charges were framed in the aforesaid section which were read over to the accused. However, he did not plead guilty and claimed trial.

11. In prosecution evidence, Shivam Sharma (PW-1) appeared and stated that age of the deceased ‘K’ was two years and she was daughter of his real elder brother Ankur Sharma. He knew accused Prem Singh whose house is in front of his Gher (Cattle shed). On 10.7.2020, at about 2.00 pm, his niece ‘K’ had gone out to play. After some time, they started searching for her but she could not be found. Thereafter, he reported a missing person’s report by giving a written complaint to the Police Station -Shikarpur. This witness had given the details of clothes worn by the deceased as per the F.I.R. version. This witness further stated that he had given statement to the S.H.O. after giving aforesaid report raising a doubt on accused Prem Singh, Pushpendra alias Pushi and one Vinod. The Tehrir (written report) given to the Police Station was Ex. Ka-1 which bears his signature and scribed by him. He further stated that dead body of victim was found at about 11.30 am on 12.7.2020 from the pond on the back side of the Gher (Cattle Shed) of accused-Prem Singh. This witness also stated about the injuries visible on the dead body. He stated that the deceased was wearing black coloured string on her left hand and a yellow coloured locket around her neck with a red coloured string. At the time of Panchyatnama (Inquest Report), he was also appointed as Panch and had signed on the Panchayatnama. This witness stated that after the recovery of the dead body, Naresh and Om Prakash told him that Prem Singh Prajapati had committed rape on her niece ‘K’ and, thereafter, in order to destroy the evidence, he had thrown ‘K’ in the pond when she was unconscious and, thus, he stated that he had every reason to believe that Prem Singh had committed rape on his niece ‘K’ and had thrown her in the pond resulting into her death.

12. In cross examination, this witness stated that he had not seen any person taking his niece ‘K’. At the time of incident, there were six members who were present at home and PW-1 was also present at home. The pond was 50 yards away from his house. This pond is spread over one bigha of land and was full of water. On receiving the information of missing of minor girl, senior police officers i.e. Inspector General of Police and Senior Superintendent of Police came to the village. The news was published in the newspaper and media and lot of hue and cry was there in the public.

13. This witness stated that he came to know about the missing of the girl at about 2.00 pm and, on 10.7.2021 and 11.7.2021, they searched the minor girl. This witness stated that he was informed by Akash Sharma when he was standing outside his house regarding recovery of the dead body on 12.7.2020 at about 11.30 am and they informed the police. At that time, about 100-150 persons gathered. The police prepared the site plan, however, at the spot, the police did not record any report and registered the report at 6.00 pm, in the police station. He does not remember if police had done any investigation at the sport or prepared the site plan or recorded any statement of witnesses.

14. He further stated that house of accused-Prem Singh is towards west side of this house. The accused is doing job of plying Horse cart (Tanga). Accused have five children. The witness further stated that he is doing a private job in Delhi, however, after the lock down, he was residing at home. After the girl was found missing, they searched in the house of Girraj, Naresh and Om Prakash. Up to 5.00 pm, he was searching the minor girl along with his parents, grandfather-Atveer Sharma, his uncle’s son and villagers. At the time of search, 30-40 persons were there and, thereafter, he went the police station to register the report. This witness stated that after he has raised doubt on Pushpendra alias Pushi, appellant Prem Singh Prajapati and Vinod, the police arrested them. He stated that he had given this statement of having doubut on Pushpendra alias Pushi, appellant-Prem Singh Prajapati and Vinod to police after one and a half hours of recovery of dead body. Dead body of victim ‘K’ was seen for the first time by Akash who is son of his father’s elder brother. This witness stated that about investigation conducted at the sport, however, stated that in the complaint (Ex.Ka-1), he had not informed the police about raising doubt on Pushpendra alias Pushi, appellant-Prem Singh Prajapati and Vinod. This witness also stated that house of Anil, Kailash and Prem Singh open towards the pond. This witness denied a suggestion that victim ‘K’ while playing, slipped into the pond and died due to drowning and that Prem Singh has not committed the offence.

15. Arun Sharma (PW-2) deposed that deceased ‘K’ was his grand daughter who is daughter of his son Ankur Sharma. He know accused Prem Singh Prajapati whose Gher is in front of his Gher. This witness also stated that the complete description as stated by PW-1 regarding clothes worn by the victim at the time when she had gone out of the house, recovery of dead body as well as the injuries which were apparent on her body. He also stated that in his statement, he has raised doubt on Prem Singh, Pushpendra and Vinod. On 12.7.2020 after recovery of dead body, Om Prakash and Naresh, resident of his village, informed him that Prem Singh has committed rape with ‘K’ and to conceal the offence, he has thrown her in unconscious condition in the pond and she died. He further stated that on the identification of Prem Singh, the police recovered one Baniyan, one nikar, one half shirt worn by Prem Singh and wet earth from the spot. Three small hairs were glued to the Baniyan which was taken in the possession along with one cloth were also taken in. He had signed the recovery memo. In cross examination by defence, this witness stated that Prem Singh is an agricultural labourer and his house is towards south of his house about one and a half k.m. away. Prem Singh is a married person having four daughters, one son and his elder daughter is aged about 9-10 years and remaining daughters are younger to her. The pond from where the dead body was recovered, is spread over two and half bigha of land. He further stated that at the time of incident four members were there in the house. His younger son, Shivam Sharma had gone to Shikarpur. He further stated that his granddaughter in the morning had gone to the house of Naresh to play as his son Kunal aged about seven years has taken his granddaughter to play at about 11:00 a.m., his grand daughter had gone to the house of Naresh to play and at 1:00 p.m.,Kunal dropped her back. He has informed the S.H.O. about this incident of ‘K’ going out to play at the house of Naresh but the same is not recorded in his statement. This witness stated that about 3:00 p.m., they started searching for ‘K’. They searched her in the house of Kailash, Prem Singh, Giriraj, Vinod and other neighbours. About 25-30 persons including Anil, Rajeev, Bhagwat, Toka, Kailash, Mukesh, Naresh and Om Prakash Sharma also joined in search for the child. After three and a half hours, his son has gone to police station for recording the missing report and police came around 7:00 p.m. and at night I.G. and D.I.G. also reached there.On 10/11.7.2020 the police again came to search ‘K’. The missing news was aired on TV and news paper. This witness stated that there is a barbed wire fixed by Prem Singh, Girraj and Vijay Pal for stopping the access to the pond. However, he is not showing to the police. This witness stated that on 10.7.2020 after he has raised doubt on Prem Singh, Pushpendara and Vinod, police arrested them and taken them away. This witness also stated about the injuries seen on the dead body of the victim. On 12.7.2012 after recovery of dead body, Om Prakash and Naresh resident of village informed that Prem Singh has committed rape with victim ‘K’ and to conceal the commission of offence, he has thrown the victim in a pond when she was unconscious. However, the police has not recorded this fact in his statement. Though, Om Prakash has informed after the dead body of ‘K’ was received.

16. In his further cross examination, it is stated that about the recovery effected from accused-Prem Singh i.e. T-shirt, Baniyan etc. and he and one Veer Pal signed the recovery memo. He has not seen anyone throwing the victim in the pond. He denied the suggestion that the victim had slipped in the pond and died due to drowning.

17. Om Prakash (PW-3) stated that he knew Prem Singh as well as Ankur Sharma and his daughter deceased ‘K’. On 10.7.2020 at about 5:00 to 6:00 pm., he came to know that victim ‘K’ aged about two years is missing. On 10.7.2020 at about 2:30 p.m., he has not seen deceased ‘K’ out side the Gher of Giriraj Prajapati and he had no knowledge how victim ‘K’ has died. This witness was declared hostile and was cross examined by ADGC stated that the pond is spread over of three bigha of land and the water level rise during the rainy season. He stated that the children of Prem Singh are quite young . He also pleaded ignorance if Prem Singh has barbed wire by fixing wooden planks. He further stated that after missing of ‘K’, many officer of police came to the village. On the date of place he was also present before the Police. The police inquired from the villagers but on that date the police did not enquire from him. Dead body of ‘K’ was recovered on 12.7.2020 and he had reached at the spot. Naresh has also reached there, he had no information. He denied a suggestion that from his mobile number 7409370572, he informed the SHO as stated in the statement under Section 161 Cr.P.C. He also denied the suggestion given by ADGC that on 10.7.2020, he met on Naresh residents of village and at that time, both of them have seen victim ‘K’ aged about two years going near the Gher of Giriraj Prajapati or on that date they have also seen Prajapati coming 4-5 steps behind the victim ‘K’. This witness also denied that on 12.7.2020, Naresh called him at his house and told that on the date of incident, Prem Singh and Prajapati was going behind the ‘K’and no other person was nearby and seen both Om Prakash and Naresh have seen this incident. They should call Prem Singh and inquired from him. He further denied that thereafter, he and Naresh called  Prem Singh and when inquired about the incident, Prem Singh caught hold of feet of both Om Prakash and Naresh and by saying that he had committed wrong. On the date of incident, when ‘K’ was going back to home, he called her to play with a lamb inside his Gher. Thereafter, he took ‘K’ in her lap and by laying her down on the floor of the room, he committed wrong with her and when the victim started crying due to pain, he pressed her face and she became unconscious and due to fear, he had thrown her in the pond. This witness denied that he made this statement to the S.H.O. by a making call from his mobile phone.

18. This witness stated that he came to know only two months ago when he received summon from the Court that he is a witness in the case. He stated that neither there is any enmity nor any dispute between the family of the informant and accused Prem Singh and they were having cordial relation. This witness specifically denied that in presence of Naresh and himself, accused Prem Singh has admitted his guilt.

19. In cross examination by defence counsel, he stated that the police never recorded the statement regarding the incident. He further stated that he has no knowledge who has committed the offence with victim ‘K’. He also stated that if the child goes towards the ponds, he can slip inside the pond

20. Naresh Kumar ( PW-4) stated that he knew Prem Singh who is the resident of village and also know Ankur Sharma and victim ‘K’ who went missing on 10.7.2020. He specifically denied that on 10.7.2020, he had seen victim ‘K’ outside the Gher of Giriraj Prajapati and has no knowledge how she has died. This witness was declared hostile and was cross examined by the public prosecutor. This witness denied all the allegations of making the statement to the S.H.O. that he along with Om Prakash on 10.7.2020 at about 11:00 to 12:00 a.m., he met with Om Prakash outside the Gher of Kailash and have seen victim ‘K’ in front of  Gher, Giriraj Prajapati or that Prem Singh was following her 4-5 yards behind.

21. This witness also denied that on the date of the incident, at about 11:00-12:00 a.m. his son Kunal has dropped victim ‘K’ back to her home. He has given his mobile no.9720384110 and further stated that he has not made any phone call to the police for giving any information on the basis of which, his statement was recorded. He further stated that on 12.7.2020, he has not met Om Prakash either personally or on mobile phone, he had a talk with him. He or Om Prakash have not given any information to Arun Sharma on the date of incident. This witness further denied that he and Om Prakash called Prem Singh and inquired that on the date of incident, why he was going behind ‘K’ and if he has committed any offence then Om Prakash caught hold of their feet and admitted he has committed a mistake and has taken victim ‘K’ to her house on pretext of playing with a lamb and thereafter, he took her inside his Gher and committed the offence by laying her down on the earth. He also denied that Om Prakash informed that when she started crying, he pressed her mouth and she became unconscious and then he has thrown her inside the pond. He also denied the suggestion that in order to help Prem Singh, he is giving false information in cross examination by defence he denied that he stated that he has no information how the ‘K’ has died.

22. Rakesh Giri (PW-5) deposed that he knew Prem Singh Prajapati, who is resident of his village and also know Ankur Sharma and his daughter victim-K. He had knowledge that on 10.7.2020, the victim-K went missing and then he got information on 12.7.2020 that her dead body was recovered. He stated that on 10.7.2020 he has not seen Prem Singh playing with victim-K and has no knowledge how she died. This witness was declared hostile. In cross examination by ADGC, he gave the description of the location of the house of Prem Singh, the village pond and the house of Arun Sharma. He stated that he had come to the court premises at 10:00 am and met an Advocate who is of from his village and had some talk with him and came to the court. This witness stated that his wife is not maintaining good health and is a heart patient and, therefore, he do not want to be a party to any good or bad with any person. He stated that victim-K went missing on 10.7.2020 and on 12.7.2020 when dead body of victim-K was recovered, he has not given statement to the police. He has come to the fact that he is witness in this case only 4-5 days before. He has not met any senior police officer regarding the case and has not given any statement to the police 3-4 days after the incident, when confronted with the statement under section 161 Cr.P.C, he has stated that he has not given any such statement and gave his mobile number (9758981085) which is recorded in his statement under Section 161 Cr.P.C but stated that he has not given any information to the police from his mobile number. He denied that he has made a statement that he has seen Prem Singh Prajapati playing with victim-K by keeping her in his lap and for that when dead body of the victim was recovered on 12.7.2020, he had reason to believe that the offence is committed by Prem Singh Prajapati. In cross examination by defence, he stated that he has no knowledge who committed offence.

23. Dr. Sarita Yadav (PW-6), a member of the medical board, who conducted the postmortem of the victim-K with the prescription. She stated that the decease had worn T-Shirt, underwear, one locket in yellow metal around her neck, sleepers and there was no stiffens on the dead body. During postmortem, the following injuries were found :-

“ Gynae Opinion

On examination pinkish in colour seen

Distended abdomen eyes ball is coming out from its sockets; hairs detachable, nails detachable, intestine & omentum is coming out through vagina. Skin goozy, skin peeled off a places. Wound present on right face, neck bone exposed & teeth exposed. No mark of external injury seen in all over body. Genital & pelvis injury opinion given by lady Dr. Sarita Yadav.”

Injury present between inner aspect of thigh and vulva – Omentum and intestine is coming out through vaginal orifice. Sample taken.

1. Anal swab

2. Oral swab

3. Vulvae Swab

4. Vaginal Swab

5. Vaginal slide

6. Vulvale slide

7. Scalp hairs

8. Nail of left hand

9. Nail of right hand

Handed over to accompanied Constable for DNA Examination (Sexual violence cannot be ruled out however final opinion reserved pending availability of F.S.L. report; sexual violence cannot be ruled out).”

24. This witness stated that in her opinion, the deceased has died around 2:30 pm on 10.7.2020. The cause of death was Asphyxia due to drowning. Post mortem report was exhibited as KA-2. This witness stated that the intestine and omentum were coming out of vagina of the deceased and in her opinion, there is strong possibility of committing rape before murder and this can be verified after receiving the FSL report. In cross examination by defence, she stated that the dead body of the deceased was filled with water and there is a possibility that intestine can come out of vagina due to filling up of water in intestine, but if there is possibility of injury on the intestine to come out. It is not possible to give opinion regarding pink colour injury. The same can be caused while fall on a rough place or wood. She stated that she has given a statement to the Investigating Officer that in case of sexual violence, no report can be given till DNA report is received. However, she stated that cause of death was Asphyxia due to drowning. There was no injury on the back, hip or head of deceased.

25. Akash Sharma (PW-7), the main prosecution witness stated that on 10.7.2020 at about 2:00 pm, he was coming back from his field to have lunch, when he reached out side the Gher of Prem Singh Prajapati, he had seen that Prem Singh Prajapati was carrying victim-K in his lap and was going towards the pond in a perturbed condition. There is a wooden plank fixed on the main door and therefore, inside of the Gher is visible. Thereafter, he had food at his home and went to Delhi for some work. He returned back to his village-Hirnot on 12.7.2020 at about 9-10 am, then he got information that victim-K, daughter of Ankur Sharma is missing and the police and the villagers are searching for her. Police recovered the dead body of the victim from a pond on the back side of Gher of Prem Singh Prajapati in his presence. She was wearing one chocolate colour Tshirt, green colour underwear and blue sleepers. The police prepared Panchayatnama and he was also one of the Punch. The original Panchnama was shown to the witness and he identified his signature.

26. This witness stated that he has informed the police that on 10.7.2020 at about 2:00 pm, he had seen Prem Singh Prajapati carrying victim-K towards the village pond situated on back side of his Gher. However, he can not tell why the police has not recorded this in his statement.

27. This witness further stated that he has seen the dead body of the victim and there was an injury mark on the neck and her intestines were coming of her private part. He has every believe that on 10.7.2020 at about 2:00 pm in the afternoon Prem Singh Prajapati has committed rape of the victim and in order to conceal his offence he threw her in the pond when she was unconscious and due to drowning, she died. In cross examination, he stated that the pond is spread over in 2 bighas of land. He further stated that in regard to the incident, he met the police at the time of preparation of Panchayatnama and thereafter in the evening and after that he never met the police. In cross examination by defence, he further stated that his father’s name is Vivek Kumar Sharma, who has a brother by the name Neetu Sharma. Neetu Sharma has no other name. His grandfather’s name is Atveer Sharma. Atveer Sharma has no child by the name of Arun Sharma and he do not know whether Neetu Sharma and Arun Sharma are the same person. When asked about a person standing in the court whether Neetu Sharma is father of Shivam Sharma, he said that he is uncle of his village relation. He denied that he has concealing the name of Arun Sharma deliberately. On a question why he did not stop Prem Singh Prajapati when he was carrying victim-K in his lap towards the pond and why he did not raise voice this witness stated that he was in a hurry. He stated that he was one of the Punch of the Panchyatnama alongwith Kunal, Shivam and Devendra Sharma. The opinion was written by Shvam. While preparing Panchayatnama, he has informed the police person present at the spot and he has seen Prem Singh Prajapati carrying victim-K towards the pond in a perturbed condition. This witness further stated that thereafter, the police picked up Prem Singh Prajapati and stated that this fact should not be told to anyone else. This witness stated that he has gone to Delhi during lockdown on a motorcycle and his mobile number is 7289060476. This witness pleaded ignorance that the missing news of the the victim was aired on TV and published in newspapers. He stated that at about 9:30 am, he reached the village and the dead body was recovered at about 11:00 am and when he reached home, his family members informed about missing of victim-K, but he did not inform to any villagers or police person that he has seen Prem Singh Prajapati, taking the victim in a perturbed condition towards the pond. On seeing the dead body in the pond, he informed the police about the aforesaid incident. On a specific question, he stated that he has informed this fact to the police but if the same is not recorded, he can not give any explanation. He further stated that he has not seen Prem Singh Prajapati throwing victim-K in the pond but has only seen him taking her towards pond in a perturbed condition. This fact was told to the Investigating Officer while recording his statement. In the end of cross examination, this witness stated that Neetu Sharma is real paternal uncle, Shivam Sharma is son of Neetu Sharma. Similarly, Ankur Sharma is also son of Neetu Sharma and is real brother of Shivam Sharma. With this relation, deceased ‘K’ was real grand daughter of my real paternal uncle. However, he has not denied the suggestion that he is making a false statement.

28. Sukh Ram Singh, Sub Inspector (PW-8) stated that on receiving information, he started investigation and reached at the spot and prepared the site plan. This witness her given complete details of the investigation about pasting posters and giving news by beat of drums and other modes and by following a dog squad inspection.

29. He prepared the memo of recovery of dead body. He prepared inquest report, Panchyatnama, which is Ex-Ka-4. Thereafter the other document regarding recovery of dead body, photograph of dead body, letter of CMO for postmortem were prepared which are Ex-KA- 5 to 9. He has also recorded statement of witness Naresh Kumar and Om Prakash in case diary, Site plan of the recovery of dead body was prepared which is Ex-Ka-10. After adding of section 302, 201, 376 IPC and 5(m)/6 of POCSO Act, the further investigation was handed over to the SHO. In further cross examination, he stated that he was present when the dog squad reached to search the victim. The clothes of the victim were kept before the dog squad for smelling and the dog squad led towards the forest area and did not enter anybody's house. This witness stated that the informant at the first instance did not inform him about any doubt. The dog squad could not find any success and thereafter nearby house of Shivam Sharma i.e. of Naresh Sharma and Om Prakash Sharma were also searched and other Gher were also searched. The pond from where the dead body was recovered were 6-8 feet deep and was fully filled with dirty water. The pond was open from all four sides and anybody can have access to the pond. He stated that the Gher of Kailash, Prem, Singh, Pushpendra and Vinod are open towards the pond and no door are fixed on the same. He further stated that on 11.7.2020 they searched for the victim towards the field abutting the forest. He further stated that Arun Sharma stated that the door of his Gher is remained open from about 2- 2:30 pm. Victim-K has gone somewhere. He further stated that during his investigation, informant Shivam Sharma did not make any statement that after recovery of the dead body, Naresh and Om Prakash of the village informed him that Prem Singh Prajapati disclosed that after commuting rape of victim, in order to conceal his offence and thrown her in the village pond when she was unconscious. When he reached at the spot and Shivam and his father informed him about recovery of dead body on 12.7.2020, he has not recorded any statement of informant Shivam. He stated that the statement of Arun Sarma recorded was at 9-10 am on 12.7.2020, in which he has not informed that Om Prakash and Naresh had told him that Prem Singh has committed rape of victim-K and thrown her in a pond when she was unconscious.

30. On a specific question whether while preparing the inquest report, Akash Sharma has told that he has seen Prem Singh taking victim-K, carrying her in his lap in a perturbed condition towards the pond. This witness replied, may be he has informed. Again on a pointed question when he was asked whether statement of Akash Sharma was recorded, he stated that he had told computer operator whose name was Adesh, who typed statement of Akash Sharma, but he might had forgotten to write the same. Again on a specific question, whether he has recorded this fact in the Panchyatnama in writing this witness stated that there is no such column in the Panchayatnama where the statement of witness is recorded.

31. This witness further stated that he has for the first time stated in the court during cross examination that Aakash Sharma informed that he had seen the accused taking away the victim.

32. SHO Umesh Kumar Pandey (PW-9) stated that after adding of sections 302, 376 AB, 201 IPC and 5M/6 of the POCSO Act, the further investigation was carried out by him. On 13.07.2020, he along with Prem Singh came in his Gher. From a peg on the wall, Prem Singh gave a dirty  white undershirt and stated that he was wearing the same and after washing it he has put it on the Peg. From the undershirt, three hairs were recovered. Then he identified the place where he committed wrong with the victim which was towards the Eastern side of the wall and was wet. He recovered a half sleeves shirt, a blue check lower with a mark Flying Machine and a dirty white coloured, towel clothes/Angosha on which the blood stains were visible were removed by Prem Singh from his body and were taken in possession. He was asked to wear other clothes. The sample of the earth was also taken. All the three hairs were kept in a plastic transparent bag and the clothes were kept in a separate sealed packet. The sample seal was prepared. The recovery memo was dictated to Senior Sub-Inspector-Shubash Singh who scribed the same and thereafter the witnesses signed on the same. On seeing the memo, he stated that it is the same which was exhibited as Ka-11 and was entered in the CD. He has also prepared the Naksha Nazri (site plant) which is Ex.Ka-12. After taking samples for DNA testing, the same was handed over to Head Moharir and he was directed that the DNA sample of the deceased and the accused be sent to Forensic Science Laboratory, Lucknow immediately. Section 376 AB of IPC was added in place of Section 376 IPC. Thereafter, application for recording statement of accused under Section 164 CrPC was filed before the court on 15.7.2020. The accused was produced before the A.C.J.M., Bulandshahar but the accused refused to record his statement under Section 164 of Cr.P.C.. The DNA sample through Constable Sarfaraz was sent to Forensic Science Laboratory, Lucknow. The statements of other witnesses of Panchayatnama and the police officials who joined the investigation were recorded. The Forensic Science Laboratory was found closed due to Corona. Thereafter, again through Constable Kalraaj, the sample of DNA testing was sent to Lucknow on 19.7.2020. The postmortem report for taking expert opinion and the videography of the spot was sent to Additional Director Medical and Legal Expert, Lucknow. The report of Medical and Legal Expert was received through Constable Sarfraj on 21.7.2020 and, thereafter, Section 5M/6 of the POCSO Act were added. The copy of the same is Ex.Ka-13.

33. In cross examination, this witness stated that statement which was made by Akash Sharma is recorded in the Case Diary at No.9 dated 18.7.2020. Prem Singh was arrested on 13.7.2020 at 11:30 a.m. This witness stated that he has recorded the statement of Akash Sharma only once. He further stated that when he reached the Gher of Prem Singh, it was locked. From the house of Prem Singh, the passage leading to the pond is open and any person has free access. The lock was opened by Prem Singh, however, this fact of opening lock by Prem Singh is told in the court for the first time and it is not recorded in the Case Diary. He denied that arrest memo was not prepared at the spot. From the personal search of accused, no money or Matchbox or tobacco was recovered. In the room, there was a cot and a box. Counsel stated that the fact that the accused was asked to change the clothes inside the room, is also told before the court for the first time. He further stated that Akash Sharma did not inform him that he had seen accused taking away victim ‘K’ in his left towards pond. He denied that he admitted that Senior Police has come on the spot and under their pressure he had made Prem Singh as an accused. He further stated that till the time the proceedings of Inquest Report was completed, name of none of the accused came forward.

34. Sunil Soni (PW-10) stated that he was posted as a Clerk in the Police Station and has typed the Chik FIR on computer which is Ex.Ka14. He also entered Rapat No. 44 dated 10.7.2020 at 19.07 p.m. and computerised copy of the GD (Ex. Ka-15). For recording FIR, Shivam Sharma had come on foot and after one hour, the copy of the same was given to him.

35. Thereafter the statement accused-Prem Singh was recorded under Section 313 Cr.P.C. and all the incriminating evidence was put to him. He stated that the informant has given a false statement that Om Prakash and Naresh has informed that the appellant has committed rape with the victim and has thrown her in the pond. With regard to the statement of Akash Sharma who had stated to the police on 10.7.2020 at about 2:00 p.m., he had seen Prem Singh carrying the victim towards the pond, is also a false statement. Regarding the police investigation, he stated that the entire proceeding has been done in the police station by making false recovery. On specific question while has has been tried in this case, the accused replied that on account of party faction in the village, he has been falsely implicated by the police to show that the case is quickly solved. The appellant has been implicated in the case on the basis of false fact. When he was asked to explain if anything, he wants to save in defence, accused stated that he has four young daughters and one son. He is a poor man and the police in order to so quickly solving the case, he has been falsely implicated. No defence evidence was laid. Thereafter, the Trial Court by impugned judgment of conviction held the appellant guilty of offence vide order of sentence, awarded him death sentence.

36. The present reference is sent by the Additional Sessions Judge for confirmation of death sentence.

37. Jail appeal is also filed.

38. Lower Court’s record is received.

39. Paper books are prepared.

40. Sri Rajiv Lochan Shukla, learned counsel for appellant, Sri Vibhuti Narayan Mishra, learned counsel for informant and the learned AGA for State are heard and with their assistance, the entire Trial Court’s record is scrutinized and reappreciated. 

41. Learned counsel for the appellant has argued that the entire case is based on circumstantial evidence and the complete chain of circumstantial are not complete.

42. With regard to the last seen evidence, it is argued that as per the informant, the victim ‘K’ aged about two years went missing at about 2:00 p.m. on 10.7.2020. It is further stated that case of the informant that he alongwith his family members and many other persons of the village searches for the minor girl in the houses vicinity including the house of the appellant, however, she could not be traced. Thereafter, a complaintTahrir ( Exhibit – Ka-A) was given to the police and at about 19:07 hours the chick FIR was registered under Section 363 IPC which is Exhibit-Ka14. 

43. Learned counsel for the appellant submits that in this complaint, no one was suspected. It is argued that while appearing as PW-1, the informant stated that when the dead body of the victim was recovered on 12.7.2020 at about 11:00 a.m., the police was informed which came at the spot, recovered the dead body and prepared the inquest report. Learned counsel for the appellant further submits that at that time the victim was wearing all the clothes i.e. a maroon colour t-shirt, green colour nikar and blue colour sleepers. It is further argued that PW-1 stated that he was also a Punch in the inquest report and had signed along with other Punches. After the recovery of the dead body, Naresh and Om Prakash resident of village told him that Prem Singh Prajapati after committing rape with victim ‘K’, in order to conceal his crime and thrown her in unconscious condition in the pond situated in the back side of the house.

44. Learned counsel for the appellant submits that the victim ‘K’ went missing on 10.7.2020 at about 2:00 p.m. and her dead body was recovered after two days on 12.7.2020 at about 11:30 to 12:00 a.m. and it is unbelievable that in the intervening period, Naresh Singh and Om Prakash did not informed PW-1 that the appellant has committed the offence.

45. Learned counsel has further argued that in cross examination of PW-2, grandfather of the victim that when they were searching for the missing child, Om Prakash, Naresh and Kailash reached immediately after the dead body of child was fond. It is submitted that in such eventuality, it  is unbelievable that two witnesses did not inform the informant about role of the appellant.

46. Learned counsel further argued that the story cooked up by the prosecution of last seen from the statement of PW-7 Akash Sharma is totally unbelievable. This witness has stated that on 10.7.2020 at about 2:00 pm, he was coming back from his field to have his lunch at his house when he saw Prem Singh Prajapati in front of his Gher carrying victim-K in his lap and was going towards the pond in a perturbed condition. Thereafter, he informed nobody at his home and went to Delhi for some work and returned on 12.7.2020 and he got information that victim-K is missing and police are searching for her. This witness is a Punch of the Panchyatnama. However, he stated that at the time of Panchyatnama, he has not given aforesaid information regarding role of Prem Singh Prajapati to the police though he has stated that he informed it to the police but the police did not recorded it in his statement.

47. Learned counsel submits that this shows that this witness has cooked up a story of last seen against the appellant. It is also submitted that in the evening after the inquest report was complete, has met the police personnel, but he did not inform them about the incident.

48. Learned counsel further submitted that this witness is not giving correct statement by saying that during Corona he has gone to Delhi on 10.7.2020 and returned back on 12.7.2020 only when the dead body of the victim-K was recovered.

49. Learned counsel submits that this witness is also witness to the recovery of the dead body from the pond. He next submits that the witness intentionally tried to conceal his relationship with the victim as well as the informant by stating that he did not know what is the correct name of Neetu Sharma and denied that his real name is Arun Sharma i.e. PW-1. He even denied his relationship with PW-2 though in the cross examination, this witness clearly admitted that the father of this witness and grandfather of the victim-K are real brothers. Counsel submits that this witness tried to conceal this relationship as he was introduced as witness later on. It is also submitted that on a pointed question regarding informing the Investigating Officer that he has seen Prem Singh Prajapati carrying the victim-K and going towards the Pond in a perturbed condition, he stated that that ‘yes’ he has informed him but he don’t know why this fact was not recorded by the Investigating Officer.

50. Learned counsel submits that this witness is not at all a reliable person.

51. With regard to extra judicial confession, it is argued that both the witnesses of extra judicial confession in clear and unequivocal terms have denied about this fact.

52. It is argued that PW-1 and PW-2 have stated that after the recovery of the dead body, PW-3, Om Prakash and PW-4 Naresh told them that accused Prem Singh Prajapati came to them and admitted his guilt and prayed for mercy. However, while appearing as PW-3, Om Prakash has clearly stated that on 10.7.2020, he came to know that victim aged about two and a half years went missing and he got this information at about 5:16 pm. He clearly stated that on 10.7.2020, he has not seen victim-K going in front of Gher of accused Prem Singh Prajapati and he has no knowledge how she has died. This witness was declared hostile and in cross examination by prosecutor, he further denied having made any such statement under section 161 Cr.P.C. to Investigating Officer from his mobile phone. He denied the suggestion that he and Naresh had seen the victim outside the house of the accused and they have also seen the accused was calling her from 4-5 feet behind. In further cross examination, he stated that neither he nor Naresh or Prem Singh Prajapati did inquire why he was calling victim-K on the date of the incident on which the accused confessed that he took the victim to her Gher and he committed the offence thereafter he pressed her mouth and she become unconscious, he threw her in the pond. This witness also stated that there was no enmity or dispute in the family of the informant and Prem Singh Prajapati. He further stated that police never recorded his statement in this regard. Similarly, statement of PW-4 Naresh, who also denied the incident as well as making a statement to the Investigating Officer on mobile phone regarding the confession made by accused Prem Singh Prajapati. Both the PW-3 and W-4 stated that they came to know that they are witness in the Court only when they received summons.

53. Learned counsel has argued that the statement of these two witnesses prove that PW-8 Akash Sharma is telling lie when he stated that on 10.7.2020, he had seen the accused carrying victim-K in his lap going towards village Pond, with regard to the same date and time, prosecution has set up a case that Om Prakash and Naresh have also seen the accused Prem Singh Prajapati carrying the victim and both these witness have clearly denied this fact.

54. Learned counsel submits that the evidence regarding last seen evidence as well as extra judicial confession are totally missing. It is further argued that name of PW-3, PW-4 or PW-7 were not disclosed appellant as suspect in the complaint which is Ex-KA, by the informant.

55. Learned counsel next argued that it has come in the statement of the prosecution witnesses including the Investigating Officer that the recovery of dead body is from open place, i.e. in a village Pond where the cattle house Anil, Kailash and Prem Singh Prajapati exist.

56. Learned counsel submits that except for the informant none of the witness have stated that they were barbed wire rather it is admitted that any person can have access to the Pond and, therefore, possibility of the minor victim sleeping into the pond can not be ruled out.

57. Learned counsel submits that in the subsequent statement, the informant gave name of three persons as suspect i.e. appellant Prem Singh Prajapati, one Pushpendra Pushi and Vinod though no was named in the first complaint i.e. Ex-KA-1. It is submitted that it has come in the statement of Investigating Officer PW-9 that immediately, all the three persons were arrested. However, nothing has come on the record in the charge sheet what happened to investigation regarding Pushpendra alias Pushi and Vinod. The counsel submits that even these two suspects were not cited as prosecution witness.

58. He next argued that FSL report submitted by the prosecution did not connect the appellant’s biological DNA with that of the DNA of the victim K. It is argued that the certain articles were recovered from the possession / pointing out of the appellant, those are the under garments (Baniyan) which was washed and were allegedly worn by the appellant during the commission of the offence and three small hairs were also recovered from the undergarments (Baniyan) of the appellant. The FSL report submitted does not connect the applicant’s DNA to that of the deceased and vice versa. The alleged biological strain of male origin found in the vaginal swab on slide and Vulval swab could only generate partial DNA profile and did not match with the DNA generated from the applicant. No DNA examination appears to have been conducted for the three hairs found on the vest (Baniyan).

59. Learned counsel submits that from the rest place of offence on the pointing out of the appellant ‘moist earth’ was recovered with faded blood stained alongwith half sleeve T-Shirt, Sleepers mark with mud , Gray Colour Towel.

60. Learned counsel for the petitioner has drawn reference to the F.S.L. Report which read as under :

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

61. Counsel has also referred to the opinion given by the State Medico Legal Cell, Lucknow which has given cause of death as Asphyxia due to drowning. The opinion given in this report reads as under :

“Opinion- In PMR the protrusion from vaginal orifice of momentum (intestine) proves the vulva and vaginal orifices were lacerated with peritoneum of the deceased. So the (digital) may be penile thrush cannot be excluded.”

62. The next argument raised by the counsel for the appellant is that an ante time F.I.R. was lodged on 10.7.2020 at about 19.07 hrs. and name of the appellant was neither disclosed in the first Tehrir (complaint) or chick F.I.R. though it was reported that the victim is not traceable.

63. It is also submitted that during the Trial, both PW-1 and PW-2 stated that huge mob was present at the scene of occurrence along with many political persons and higher police officials including D.I.G and S.S.P. and, therefore, there was pressure on the Investigating Authority to workout the crime quickly and, in that process, the Investigating Officer has illegally named the appellant as accused.

64. It is also submitted that the statement of Akash Sharma (PW-7) is not reliable as this witness had stated that he had seen the deceased carrying the victim in his lap and going towards the pond in a perturbed condition. However, this witness, without verifying the same or informing it to the family of the victim, went to Delhi on the same day after having meal as per his depositions. Counsel submits that there is no explanation given by this witness why he had not disclosed the family of the victim about this fact immediately on 10.7.2020.

65. It is also submitted that PW-7 is not a witness of commission of rape or murder of the victim and he has been introduced just as a link of the circumstantial evidence through the subsequent story, by introducing Om Prakash (PW-3) and Naresh Kumar (PW-4), both the witnesses of extra judicial confession before whom the appellant allegedly confess the commission of crime, however, they have not supported the prosecution story. Counsel argued that all the three witnesses i.e. PW-7, PW-3 and PW-4, as per the prosecution version, had seen the victim in the company of the appellant on 10.7.2020 around the same time but, neither PW-7 has seen PW-3 & PW-4 at the spot at that time nor PW-3 or PW-4 have seen PW-7 at the spot. 

66. Counsel submits that even the recovery effected from the appellants, at his pointing out, while he was in custody, did not corroborate the prosecution story and the recovery memo sent for forensic examination did not lead any incriminating discovery.

67. Counsel for the appellant has laid much emphasized on the fact that PW-7 for the first time in the Court has stated the fact that he had seen Prem Singh carrying victim ‘K’ in his lap and going towards a pond in perturbed condition.

68. Learned counsel for the appellant submits that this improvement cannot be made by the prosecution witness by stating a fact for first time in Court. A reference is drawn to Section 145 of Evidence Act, 1872 which read as under : -

“145. Cross-examination as to previous statements in writing. – A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

69. Learned counsel for the appellant submits that since this witness has not made any previous statement before the police under section 161 Cr.P.C. upon which he can be cross examined, the making of such statement for the first time in the Court is not admissible.

A reference is also drawn to Sections 161 and 162 of Criminal Procedure Code, 1973 which read as under :

“161. Examination of witnesses by police :-(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

[Provided that statement made under this sub-section may also be recorded by audio-video electronic means.]

[Provided further that the statement of a woman against whom an offence under section 354, section 376A, section1 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509 of The Indian Penal Code is alleged to have been committed or attempted, shall be recorded, by a woman police officer or any woman officer.”

162. Statements to police not to be signed : Use of statements in evidence . -(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, “whether in a police diary or otherwise,” or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act , 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872); or to affect the provisions of section 27 of that Act

Explanation.--An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.”

It is argued that in the absence of any statement of PW-7 recorded by the Investigating Officer in terms of Section 161 of Cr.P.C., PW-7 could not make such improvised statement for the first time while recoding his examination-in-chief.

70. It is also submitted that the prosecution version of extra judicial confession also stands falsified from the fact that if the appellant had made extra judicial confession of committing rape upon victim and throwing her in the pond, if came to the notice of the Investigating Agency, still dead body was not recovered on the pointing out of the appellant.

71. It is submitted that place of occurrence is a cattle house (gher of appellant) and there is no door either in front of this cattle house or on the back side leading to the pond and there is ample chance that any person may have access to scene of occurrence and commit offence as suggested to the prosecution witness. It is also submitted that there is no barbed wire or gate on the cattle house.

72. Counsel has lastly argued that appellant is a poor agricultural labour as admitted by the prosecution witnesses and the Investigating Officer. He has four daughters and a son. The eldest child was 9 years of age at the time of incident. Counsel submits that he was found to be an easy prey by the Investigating Agency in order to hush up the investigation under the pressure as political person and senior police officers were monitoring the investigation.

73. Counsel submits that it has come in prosecution evidence that three persons namely Pushpendra alias Pushi, Vinod and appellant were suspected, however, the entire investigation is silent that after the arrest of all the three persons what investigation was carried out with regard to other two persons and in what manner they were found to be innocent. Nothing has come on record as to what type of investigation was carried out against these two persons and, therefore, the appellant has been falsely implicated.

74. Learned counsel for the appellant submits that it is also provided under Section 162 Cr.P.C. that statement recorded by the Police under Section 161 Cr.P.C. can be used by the accused to contradict or confront such witness in the manner provided under Section 145 of Evidence Act, 1872. It is further submitted that even in case of PW-3 and PW-4, no statement under Section 161 Cr.P.C. was recorded as it has come in the statement that Investigating Officer ( PW-10) that he has only recorded the case diary on receiving a telephonic call from PW-3 and PW-4. Even no statement is recorded by using audio-video electronic means recording statement of i.e. PW-3 & PW-4 if they had given any information on mobile phone to Investigating Officer.

75. Learned counsel for the appellant submits that Section 172(3) of Cr.P.C. provides that neither the accused nor his agents shall be entitled to call for such case diary and, therefore, in the absence of any separate statement of PW-3, PW-4 & PW-7 recorded by the Investigating Officers under Section 161 Cr.P.C., the statement made by PW-7 by improving the facts cannot be read in evidence as the right of accused is prejudiced as he has no right to call for the case diary of the Police for confronting the witnesses.

76. Learned counsel for the appellant submits that though PW-10 has given an explanation that he has dictated the statement made by PW-7 to the typist named Adesh Panchang who prepared the same, had omitted to write it, the same is a mistake. Learned counsel submits that this typist named Adesh Panchang was never cited as a prosecution witness to explain it.

77. Learned counsel for the appellant further submits that S.I. Sukhpal Singh (PW-8) stated that for the first time, he has said so in his cross examination in the Court that Akash Sharma told him that he had seen the accused carrying the victim and he has not stated so in examination-inchief.

78. Learned counsel for the appellant submits that the FIR is ante-timed as nothing has come on record that after registration of FIR on 10.7.2020, till recovery of dead body of the victim any investigation was carried out by the Police and in fact the FIR was registered only after the recovery of dead body on 12.7.2020.

79. In reply, learned AGA for State submits that as per the opinion given by State Medico Legal Cell, Lucknow with reference to the PMR, it has submitted that this opinion clearly show that the victim ‘K’ was subjected to rape. It is next contended that even the injuries as noticed in postmortem report also suggests that she was subjected to rape as PW-6, the doctor who conducted the postmortem has given a definite opinion that the possibility of the rape cannot be ruled out, however, the same will be ascertained on receiving the FSL report.

80. Learned counsel then referred to the FSL report wherein, it is opined that Exhibits -2 & 3 ( of victim ‘K’) in the source of biological cerium, male allele is found but only partial DNA profile was generated and, therefore, it is not possible to give an opinion regarding matching of the same with the source (one Prem Singh).

81. Learned AGA for State has further argued that during the course of investigation, the police wanted to record the statement of accused under Section 164 Cr.P.C. but he has refused to give consent. A reference is also drawn to the last line of examination-in-chief of PW-3 where he has stated that accused should be punished. It is next argued that from the statement of PW-6, the doctor who conducted the postmortem, it has come that possibility of rape cannot be ruled out and the same was proved from the DNA result.

82. Learned AGA for State has further argued that it is a normal practices in State of Uttar Pradesh that the statements under Section 161 Cr.P.C. are recorded in the case diary only. It is further argued that the recovery of dead body is just on the back side of the Gher (cattle House) of accused where the access can be made through his Gher. It is contended that after the arrest of the accused, upon his discloser, the clothes worn by him at the time of commission of offence were recovered and from the under shirt/ Baniyan, three hairs were recovered and as per FSL report, the same matched with the blood sample of the appellant.

83. Learned AGA for State has further submitted that the discloser can be either verbally or written or by gesture. It is submitted that Akash Sharma (PW-7) is a witness of recovery who is an independent witness.

84. Learned counsel appearing for informant has argued that the chain of circumstances is complete as from the statement of PW-7, the last seen evidence is proved and from the statements of PW-3 and PW-4, the extra judicial confession made by the appellant is followed by the recovery of clothes from him. It is also submitted that mere fact that Akash Sharma is a relative of the informant, is not a ground to discard his statement.

85. Learned counsel for the informant has further argued that it has come in the statement of PW-3 & PW-4 that before coming to Court, they had gone to meet an advocate of their village and thereafter they had come to record their statement. This shows that both these witnesses are won over by the accuse

86. In reply, learned counsel for appellant submits that from the statement of Investigating Officer it is clear that the pond has an open access for all and as per medical dictionary ‘Allele’ means as under:-

“An allele is one of two or more versions of DNA sequence (a single base or a segment of bases) at a given genomic location. An individual inherits two alleles, one from each parent, for any given genomic location where such variation exists. If the two alleles are the same, the individual is homozygous for that allele. If the alleles are different, the individual is heterozygous”

It is submitted that D.N.A. report nowhere prove the case of prosecution.

87. Learned counsel for appellant submits that in fact both PW-3 and PW-4 have stated that they came to know about, they being prosecution witness only when they received summons from the Court and, therefore, in ordinary course, if they met an advocate of their village to know about the case, no adverse inference can be drawn in this regard.

88. Learned counsel for the appellant submits that the confession setup by the prosecution being a deficient evidence, if not proved cannot be used against the appellant.

89. It would be relevant to refer to certain judgment of Supreme Court of India on scientific investigation of DNA.

90. In Dharam Deo Yadav vs. State of U.P., 2014 (3) Apex Court Judgements (SC) 125, it is observed as under :

"33. We are in this case concerned with the acceptability of the DNA report, the author of which (PW21) was the Chief of DNA Printing Lab, CDFD, Hyderabad. The qualifications or expertise of PW21 was never in doubt. The method he adopted for DNA testing was STR analysis. Post-mortem examination of the body remains (skeleton) of Diana was conducted by Dr. C.B. Tripathi, Professor and Head of Department of Forensic Medical I.M.S., B.H.U., Varanasi. For DNA analysis, one femur and one humerus bones were preserved so as to compare with blood samples of Allen Jack Routley. In cases where skeleton is left, the bones and teeth make a very important source of DNA. Teeth, as often noticed is an excellent source of DNA, as it forms a natural barrier against exogenous DNA contamination and are resistant to environmental assaults. The blood sample of the father of Diana was taken in accordance with the set up precept and procedure for DNA isolation test and the same was sent along with taken out femur and humerus bones of recovered skeleton to the Centre for D.N.A. Fingerprinting and Diagnostics (CDFD), Ministry of Science and Technology, Government of India, Hyderabad. PW21, as already indicated, conducted the DNA Isolation test on the basis of samples of blood of Routley and femur and humerus bones of skeleton and submitted his report dated 28.10.1998. DNA Fingerprinting analysis was carried out by STR analysis and on comparison of STR profile of Routley. When DNA profile of sample found at the scene of crime matches with DNA profile of the father, it can be concluded that both the samples are biologically the same.

34. The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made-up of a double standard structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines. The most important role of DNA profile is in the identification, such as an individual and his blood relations such as mother, father, brother, and so on. Successful identification of skeleton remains can also be performed by DNA profiling. DNA usually can be obtained from any biological material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the Court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in Court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory. Close relatives have more genes in common than individuals and various procedures have been proposed for dealing with a possibility that true source of forensic DNA is of close relative. So far as this case is concerned, the DNA sample got from the skeleton matched with the blood sample of the father of the deceased and all the sampling and testing have been done by experts whose scientific knowledge and experience have not been doubted in these proceedings. We have, therefore, no reason to discard the evidence of PW19, PW20 and PW21. Prosecution has, therefore, succeeded in showing that the skeleton recovered from the house of the accused was that of Diana daughter of Allen Jack Routley and it was none other than the accused, who had strangulated Diana to death and buried the dead body in his house."

91. Similar View is taken in Mukesh and Anr. Vs. State of NCT of Delhi, 2017 AIR (SC) 2161. The operative portion of the order read as under :

“443. Before considering the above findings of DNA analysis contained in tabular form, let me first refer to what is DNA, the infallibility of identification by DNA profiling and its accuracy with certainty. DNA – De- oxy-ribonucleic acid, which is found in the chromosomes of the cells of living beings, is the blueprint of an individual. DNA is the genetic blue print for life and is virtually contained in every cell. No two persons, except identical twins have ever had identical DNA. DNA profiling is an extremely accurate way to compare a suspect’s DNA with crime scene specimens, victim’s DNA on the blood-stained clothes of the accused or other articles recovered, DNA testing can make a virtually positive identification when the two samples match. A DNA finger print is identical for every part of the body, whether it is the blood, saliva, brain, kidney or foot on any part of the body. It cannot be changed;

it will be identical no matter what is done to a body. Even relatively minute quantities of blood, saliva or semen at a crime scene or on clothes can yield sufficient material for analysis. The Experts opine that the identification is almost hundred per cent precise. Using this i.e. chemical structure of genetic information by generating DNA profile of the individual, identification of an individual is done like in the traditional method of identifying finger prints of offenders. Finger prints are only on the fingers and at times may be altered. Burning or cutting a finger can change the make of the finger print. But DNA cannot be changed for an individual no matter whatever happens to a body

444. We may usefully refer to Advanced Law Lexicon, 3rd Edition Reprint 2009 by P. Ramanatha Aiyar which explains DNA as under:-

“DNA.- De-oxy-ribonucleic acid, the nucleoprotein of chromosomes. The double-helix structure in cell nuclei that carries the genetic information of most living organisms.

 

The material in a cell that makes up the genes and controls the cell. (Biological Term) DNA finger printing. A method of identification especially for evidentiary purposes by analyzing and comparing the DNA from tissue samples. (Merriam Webster)”

In the same Law Lexicon, learned author refers to DNA identification as under:

DNA identification. A method of comparing a person’s deoxyribonucleic acid (DNA) – a patterned chemical structure of genetic information – with the DNA in a biological specimen (such as blood, tissue, or hair) to determine if the person is the source of the specimen. – Also termed DNA finger printing; genetic finger printing (Black, 7th Edition, 1999)

445. DNA evidence is now a predominant forensic technique for identifying criminals when biological tissues are left at the scene of crime or for identifying the source of blood found on any articles or clothes etc. recovered from the accused or from witnesses. DNA testing on samples such as saliva, skin, blood, hair or semen not only helps to convict the accused but also serves to exonerate. The sophisticated technology of DNA finger printing makes it possible to obtain conclusive results. Section 53A Cr.P.C. is added by the Code of Criminal Procedure (Amendment) Act, 2005. It provides for a detailed medical examination of accused for an offence of rape or attempt to commit rape by the registered medical practitioners employed in a hospital run by the Government or by a local authority or in the absence of such a practitioner within the radius of 16 kms. from the place where the offence has been committed by any other registered medical practitioner

446. Observing that DNA is scientifically accurate and exact science and that the trial court was not justified in rejecting DNA report, in Santosh Kumar Singh v. State through CBI (2010) 9 SCC 747, the Court held as under:-

“65. We now come to the circumstance with regard to the comparison of the semen stains with the blood taken from the appellant. The trial court had found against the prosecution on this aspect. In this connection, we must emphasise that the court cannot substitute its own opinion for that of an expert, more particularly in a science such as DNA profiling which is a recent development. 66. Dr. Lalji Singh in his examination-in-chief deposed that he had been involved with the DNA technology ever since the year 1974 and he had returned to India from the UK in 1987 and joined CCMB, Hyderabad and had developed indigenous methods and techniques for DNA finger printing which were now being used in this country. We also see that the expertise and experience of Dr. Lalji Singh in his field has been recognised by this Court in Kamalanantha v. State of T.N. (2005) 5 SCC 194 We further notice that CW 1 Dr. G.V. Rao was a scientist of equal repute and he had in fact conducted the tests under the supervision of Dr. Lalji Singh. It was not even disputed before us during the course of arguments that these two scientists were persons of eminence and that the laboratory in question was also held in the highest esteem in India. 67. The statements of Dr. Lalji Singh and Dr. G.V. Rao reveal that the samples had been tested as per the procedure developed by the laboratory, that the samples were sufficient for the purposes of comparison and that there was no possibility of the samples having been contaminated or tampered with. The two scientists gave very comprehensive statements supported by documents that DNA of the semen stains on the swabs and slides and the underwear of the deceased and the blood samples of the appellant was from a single source and that source was the appellant. 68. It is significant that not a single question was put to PW Dr. Lalji Singh as to the accuracy of the  methodology or the procedure followed for the DNA profiling. The trial court has referred to a large number of textbooks and has given adverse findings on the accuracy of the tests carried out in the present case. We are unable to accept these conclusions as the court has substituted its own opinion ignoring the complexity of the issue on a highly technical subject, more particularly as the questions raised by the court had not been put to the expert witnesses. In Bhagwan Das v. State of Rajasthan AIR 1957 SC 589 it has been held that it would be a dangerous doctrine to lay down that the report of an expert witness could be brushed aside by making reference to some text on that subject without such text being put to the expert. 71. We feel that the trial court was not justified in rejecting the DNA report, as nothing adverse could be pointed out against the two experts who had submitted it. We must, therefore, accept the DNA report as being scientifically accurate and an exact science as held by this Court in Kamti Devi v. Poshi Ram (2001) 5 SCC 311. In arriving at its conclusions the trial court was also influenced by the fact that the semen swabs and slides and the blood samples of the appellant had not been kept in proper custody and had been tampered with, as already indicated above. We are of the opinion that the trial court was in error on this score. We, accordingly, endorse the conclusions of the High Court on Circumstance 9.” [emphasis added].

447. ………….xxx…………….

448. DNA profile generated from the blood samples of accused Ram Singh matched with the DNA profile generated from the rectal swab of the victim. Blood as well as human spermatozoa was detected in the underwear of the accused Ram Singh (dead) and DNA profile generated therefrom was found to be female in origin, consistent with that of the victim. Likewise, the DNA profile generated from the breast swab of the victim was found consistent with the DNA profile of the accused Akshay.”

92. In Ravi s/o of Ashok Ghumare Vs. State of Maharashtra, 2019 AIR (SC) 5170, the Supreme Court has observed as under :

“34. The unshakable scientific evidence which nails the appellant from all sides, is sought to be impeached on the premise that the method of DNA analysis “Y-STR” followed in the instant case is unreliable. It is suggested that the said method does not accurately identify the accused as the perpetrator; and unlike other methods say autosomal-STR analysis, it cannot distinguish between male members in the same lineage.

35. We are, however, not swayed by the submission. The globally acknowledged medical literature coupled with the statement of P.W.11 – Assistant Director, Forensic Science Laboratory leaves nothing mootable that in cases of sexual assualt, DNA of the victim and the perpetrator are often mixed. Traditional DNA analysis techniques like “autosomal- STR” are not possible in such cases. Y-STR method provides a unique way of isolating only the male DNA by comparing the Y- Chromosome which is found only in males. It is no longer a matter of scientific debate that YSTR screening is manifestly useful for corroboration in sexual assault cases and it can be well used as excalpatory evidence and is extensively relied upon in various jurisdictions throughout the world. 1&2. Science and Researches have emphatically established that chances of degradation of the `Loci’ in samples are lesser by this method and it can be more effective than other traditional methods of DNA analysis. Although Y-STR does not distinguish between the males of same lineage, it can, nevertheless, may be used as a strong circumstantial evidence to support the prosecution case. Y-STR techniques of DNA analysis are both regularly used in various jurisdictions for identification of offender in cases of sexual assault and also as a method to identify suspects in unsolved cases. Considering the perfect match of the samples and there being nothing to discredit the

1“Y-STR analysis for detection and objective confirmation of child sexual abuse”, authored by Frederick C. Delfin – Bernadette J. Madrid – Merle P. Tan – Maria Corazon A. De Ungria.

2“Forensic DNA Evidence: Science and the Law”, authored by Justice Ming W. Chin, Michael Chamberlain, A,y Roja, Lance Gima.

DNA analysis process, the probative value of the forensic report as well as the statement of P.W.11 are very high. Still further, it is not the case of the appellant that crime was committed by some other close relative of him. Importantly, no other person was found present in the house except the appellant.

36. There is thus overwhelming eye-witness account, circumstantial evidence, medical evidence and DNA analysis on record which conclusively proves that it is the appellant and he alone, who is guilty of committing the horrendous crime in this case. We, therefore, unhesitatingly uphold the conviction of the appellant.”

93. In Manoj and others vs. State of Madhya Pradesh, (2022) SCC Online SC 677, the Supreme Court has observed as under :

“138. During the hearing, an article published by the Central Forensic Science Laboratory, Kolkata40 was relied upon. The relevant extracts of the article are reproduced below:

Deoxyribonucleic acid (DNA} is genetic material present in the nuclei of cells of living organisms. An average human body is composed of about 100 trillion of cells. DNA is present in the nucleus of cell as double helix, supercoiled to form chromosomes along with Intercalated proteins. Twenty- three pairs of chromosomes present In each nucleated cells and an individual Inherits 23 chromosomes from mother and 23 from father transmitted through the ova and sperm respectively. At the time of each cell division, chromosomes replicate and one set goes to each daughter cell. All Information about Internal organisation, physical characteristics, and physiological functions of the body is encoded in DNA molecules in a language (sequence) of alphabets of four nucleotides or bases: Adenine (A), Guanine (G}, Thymine (T} and Cytosine (C) along with sugar- phosphate backbone. A human haploid cell contains 3 billion bases approx. All cells of the body have exactly same DNA but it varies from individual to Individual in the sequence of nucleotides. Mitochondrial DNA (mtDNA} found in large number of copies in the mitochondria is circular, double stranded, 16,569 base pair in length and shows maternal inheritance. It is particularly useful in the study of people related through the maternal line. Also being in large number of copies than nuclear DNA, it can be used in the analysis of degraded samples. Similarly, the Y chromosome shows paternal inheritance and is employed to trace the male lineage and resolve DNA from males in sexual assault mixtures. Only 0.1 % of DNA (about 3 million bases} differs from one person to another. Forensic DNA Scientists analyse only few variable regions to generate a DNA profile of an individual to compare with biological clue materials or control samples.

…… DNA Profiling Methodology DNA profile is generated from the body fluids, stains, and other biological specimen recovered from evidence and the results are compared with the results obtained from reference samples. Thus, a link among victim(s) and/or suspect(s) with one another or with crime scene can be established. DNA Profiling Is a complex process of analyses of some highly variable regions of DNA. The variable areas of DNA are termed Genetic Markers. The current genetic markers of choice for forensic purposes are Short Tandem Repeats (STRs). Analysis of a set of 15 STRs employing Automated DNA Sequencer gives a DNA Profile unique to an Individual (except monozygotic twin). Similarly, STRs present on Y chromosome (Y- STR) can also be used in sexual assault cases or determining paternal lineage. In cases of sexual assaults, Y-STRs are helpful in detection of male profile even in the presence of high level of female portion or in case of azoo11permic or vasectomized" male. Cases In which DNA had undergone environmental stress and biochemical degradation, min lSTRs can be used for over routine STR because of shorter amplicon size.

DNA Profiling is a complicated process and each sequential step involved in generating a profile can vary depending on the facilities available In the laboratory. The analysis principles, however, remain similar, which include:

1. isolation, purification & quantitation of DNA

2. amplification of selected genetic markers

3. visualising the fragments and genotyping

4. statistical analysis & interpretation.

In DNA analysis, variations in Hypervariable Region I & II (HVR I & II) are detected by sequencing and comparing results with control samples:….

Statistical Analysis

A typical DNA case involves comparison of evidence samples, such as semen from a rape, and known or reference samples, such as a blood sample from a suspect. Generally, there are three possible outcomes of profile comparison:

1) Match: If the DNA profiles obtained from the two samples are indistinguishable, they are said to have matched.

2) Exclusion: If the comparison of profiles shows differences, it can only be explained by the two samples originating from different sources.

3) Inconclusive: The data does not support a conclusion Of the three possible outcomes, only the "match" between samples needs to be supported by statistical calculation. Statistics attempt to provide meaning to the match. The match statistics are usually provided as an estimate of the Random Match Probability (RMP) or in other words, the frequency of the particular DNA profile in a population.

In case of paternity/maternity testing, exclusion at more than two loci is considered exclusion. An allowance of 1 or 2 loci possible mutations should be taken Into consideration while reporting a match. Paternity of Maternity Indices and Likelihood Ratios are calculated further to support the match.

Collection and Preservation of Evidence If DNA evidence is not properly documented, collected, packaged, and preserved, It will not meet the legal and scientific requirements for admissibility in. a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victim(s), suspect(s), scene of crime for solving the case should be Identified, preserved, packed and sent for DNA Profiling.”

139. In an earlier judgment, R v Dohoney & Adams the UK Court of Appeal laid down the following guidelines concerning the procedure for introducing DNA evidence in trials: (1) the scientist should adduce the evidence of the DNA comparisons together with his calculations of the random occurrence ratio; (2) whenever such evidence is to be adduced, the Crown (prosecution) should serve upon the defence details as to how the calculations have been carried out, which are sufficient for the defence to scrutinise the basis of the calculations; (3) the Forensic Science Service  should make available to a defence expert, if requested, the databases upon which the calculations have been based.

140. The Law Commission of India in its report, observed as follows:

“DNA evidence involves comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not 'match', then this will prove a lack of identity between the known person and the person from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples, an approximate number reflecting how often a similar DNA "profile" or "fingerprint" is found. It may be, for example, that the relevant profile is found in 1 person in every 100,000: This is described as the 'random occurrence ratio' (Phipson 1999).

Thus, DNA may be more useful for purposes of investigation but not for raising any presumption of identity in a court of law.”

94. After hearing the counsel for the parties, we find that the finding recorded by the Trial Court at point ‘A’ regarding the age and identity of the deceased-victim ‘K’ is correct and same is upheld.

1. Nature of commission of Offence :- Similarly, the finding recorded by the Trial Court at point ‘B’ regarding the nature of commission of offence is also upheld that victim ‘K’ aged about 02 years was subjected to penetrative sexual assault. The Trial Court has recorded a finding that it is very unfortunate that the special Forensic Science Lab has though recorded a finding regarding presence of male allele yet due to partial generation of DNA profile, it is observed that it is not possible to match the same with source Ex-1 i.e. the blood sample of the accused. The Trial Court has also recorded that the Forensic Science Lab by not giving a definite report has escaped the official duty. We therefore, uphold the finding of the Trial Court that as per Postmortem Report (Ex.Ka.-7), the cause of death of victim-K was drowning in a pond after she was subjected to sexual assault.

At point ‘C’, (1) the Trial Court recorded a finding that on 10.7.2020, the Victim went missing and an F.I.R. was registered at 19.07 hrs, however, the name of the accused was not mentioned. Since the victim was a child of two years, the F.I.R. was registered under Section 363 IPC as a child of such a young and tender age cannot go missing on her own. Therefore, the Trial Court has rightly recorded this finding.

(2) Recovery of Dead body: The Trial Court has rightly recorded that the dead body was recovered on 12.7.2020 and thereafter, Inquest Report/Punchayatnama was done, videography was done and the dead body was sent for postmortem which was conducted on the same day at about 5.00 pm.

(3) Reliability of Prosecution Witnesses : The Trial Court has recorded that all the prosecution witnesses specially PW-3, PW-4 & PW5, even if belongs to the same village and the same caste and community, their testimony cannot be disbelieved.

At point (4), the Trial Court recorded that even though the three witnesses namely, PW-3, PW-4, PW-5, were declared hostile, however the same does not affect the prosecution version is not the correct appreciation.

95. However, we do not agree with the finding recorded by the Trial Court regarding indictment of accused-appellant in commission of the offence.

96. We record our finding contrary to the finding recorded by the Trial Court for the following reasons:

1-A. Akash Sharma (PW-7) is the main witness on whom the defence has led much stress that this witness is not a reliable witness. In the opening part of his examination-in-chief, this witness, with regard to relationship with the informant (PW-1) and grand father of victim ‘K’. PW-2 has clearly denied any relationship so much so to the extent that victim-K was in fact daughter of his real paternal uncle who is son of PW2. However, at the fag end of the cross examination, this witness admitted that Arun Sharma (PW-2) is his real grand father and victim-K is daughter of Ankur Sharma and the grand daughter Atvir Sharma and thus she is his niece.

The reason for concealing the relationship with PW-1 and PW-2 is apparent on record as Firstly PW-7 has set up the evidence of last seen and stated that on 10.7.2020 at about 2.00 pm, he was coming back from his field to have lunch and when he reached out side the cattle shed (gher) of Prem Singh, he was carrying victim-K in his lap and in a perturbed condition was going towards the pond. The reason to conceal the relationship with PW-1 and PW-2 (his own grand father) is that PW-7 could not give any explanation that if he has seen the minor girl (his niece) aged two years in the lap of a stranger i.e. accused-Prem Singh who in a perturbed condition was carrying her towards the pond, he would have immediately responded to the situation. Since this story was cooked up later on, in order to avoid giving explanation to such situation, PW-7 concealed the relationship with PW-1 and PW-2.

Secondly, the subsequent part of statement of this witness is also not trustworthy when he states that thereafter he had lunch and went to Delhi for some work. It was Corona period at that time and this witness stated that he had gone to Delhi on motorcycle as lock of his rented house at Delhi was broken. He returned back on 12.7.2020 at about 9-10.00 AM i.e. the date when the dead body of the victim-K was recovered at 11.30 AM. It is unbelievable that from 10.7.2012 till 12.7.2020 this witness has no knowledge that his niece Victim-K is missing and not only senior police officials like D.I.G., S.S.P. but the whole village was searching for her, therefore, the first version of last seen evidence given by this witness becomes highly doubtful.

Thirdly, this witness states that he had seen the dead body of victim and informed PW-1 in this regard. Arun Sharma (PW-2) real uncle of PW-7 stated that he got this information from Akash Sharma (PW-7). Thereafter, PW-7 also was also a witness to the Panchayatnama/Inquest Report along with four other persons. In cross examination, this witness stated that he has informed the police after recovery of the dead body that on 10.7.2020, he had seen Prem Singh carrying victim-K towards the pond. However, he admitted that no such statement was recorded by the police and he cannot tell its reason. This also falsify the evidence of last seen set up by PW-7.

Fourthly, this witness further stated in examination-in-chief that he has every reason to believe that on 10.7.2020 at about 2.00 pm, Prem Singh committed rape with victim-K and to conceal his offence has thrown her in pond situated on the backside of his cattle shed (gher). Again at the cost of repetition, looking at the close relationship of this witness with PW-2 as well as victim-K, it is unbelievable that for a period of two days he was staying in Delhi and did not inform the aforesaid last seen evidence to anyone in the village including the informant.

It is worth noticing a perusal of the zimni order dated 26.08.2021 passed by the Trial Court shows an application was moved on behalf of defence to summon the call details regarding mobile phone of PW-7 and his location of the aforesaid three days. However, the said was declined by the Trial Judge on the ground that same has been filed at a very delayed stage.

This witness stated that even at the time of preparation of inquest report, he has informed the police about the last seen of victim-K with Prem Singh but the same was not recorded.

Fifthly, yet another reason to disbelieve the testimony of PW-7 is that he had stated that at about 2:00 pm on 10.7.2020 he had seen Prem Singh Prajapati carrying victim-K in his lap going towards the pond. This date and time coincide with the date and time set up by prosecution through two witnesses of extra judicial confession i.e. PW-3 Om Prakash and PW-4 , though both these witnesses were declared hostile and did not support prosecution version but the case as projected by the prosecution is that first PW-3 and PW-4 had seen victim K going on foot in front of Gher/cattle shed of Prem Singh Prajapati and the accused was seen following her 4-5 steps behind. The times set up by the prosecution of seeing victim K by PW7 and PW-3 and PW-4 coincides but all these witnesses have not seen each other at the relevant time which makes presence of PW-7 at the spot doubtful. Even PW-9 Umesh Kumar, the second Investigating Officer, in cross examination has clearly stated that Akash Sharma did not inform him that he had seen the accused carrying victim-K in his lap going towards the pond. Similar is deposition of PW-8 Sukh Ram Singh, Sub Inspector who also stated that for the first time in Court he has stated this fact, in cross examination that Akash Sharma had seen the accused taking the victim-K. The site plan/ Naksa Nazri prepared by the Investigating Officer as Exhibit Ka-3, Ka-10 & Ka-12 show that at point B where the dead body was recovered is more closer to the house of one Kailash which is situated on the western side of Gher of Prem Singh Prajapati.

Lastly, PW-8 – Sukh Ram Singh, Sub Inspector, for the first time, has set up a new version in the Court when in cross examination, to a specific question whether while preparing inquest report, Akash Sharma told him about the fact that Prem Singh Prajapati while in perturbed condition was taking victim-K towards pond, this witness replied may be so informed. Again on question if said information was given by Akash Sharma and his statement was recorded, PW-8 replied that I have told this to computer operator named as Adesh Panchang and maybe due to omission, he forgot to record the same. Another question asked to this witness was whether while preparing inquest report, the aforesaid factum of Prem Singh Prajapati carrying victim-K towards pond was recorded in Panchyatnama in writing, this witness replied that there is no such column in Panchayatnama to record it. Statement of PW-8 also makes it clear that, in fact, no such statement was made by PW-7 to him regarding role of the appelant otherwise this primary evidence would have been immediately taken notice and recorded in the statement of Akash Sharma. By mere saying that it is an omission on the part of computer operator Adesh Panchang is unbelievable as even the computer operator is not examined to explain the omission on his part. It has been held by the Supreme Court in Javed Shaukat Ali Qureshi vs. State of Gujarat, (2023) 9 SCC 164 while relying upon earlier judgment in Vadivelu Thevar Vs. State of Madras, 1957 0 AIR (SC) 614 that generally speaking, oral testimony of a witness can be classified into three categories namely (i) Wholly reliable; (ii) Wholly unreliable and (iii) Neither wholly reliable nor wholly unreliable. Therefore, this Court finds that the statement of PW-7 is not at all reliable qua the evidence of last seen of accused with victim.

1-B. Credibility of PW-3 Om Prakash and PW-4 Naresh and PW-5- Rakesh Giri qua extra judicial confession of accused.

All these witnesses did not support the prosecution version to prove the extra judicial confession made by the accused/appellant before them as set up by the prosecution.

PW-3 clearly stated that he is resident of the same village and know Prem Singh Prajapati. He also stated that he knew and could identify the deceased victim-K, who is daughter of Ankur Sharma. He stated that in evening about 5:00 pm he came to know that victim-K has gone missing and clearly stated in examination-in-chief that on 10.7.2020, he had not seen victim-K in front of cattle shed/Gher of the accused and has no knowledge about the cause of her death. This witness was declared hostile and in cross examination by the public prosecutor, he stated that when senior police officers had come in search of the victim, he was present in the village and police inquired from him as well. He further stated that at the time of recovery of dead body on 12.7.2020, he was present at the spot, but police did not record his statement. The statement of this witness recorded under Section 161 Cr.P.C. in case diary in original was confronted to him, but he denied the same. He even denied that from his mobile number, he has informed the SHO that on 10.7.2020 in front of  Gher/Cattle shed of the accused, he met PW-4 Naresh and both of them had seen victim-K, aged 2 years, coming on foot and accused was calling him from 4-5 feet behind. This witness further denied that on 12.7.2020, PW-4 called him at his home and asked him that since they have seen Prem Singh Prajapati following victim-K at the date of offence, therefore, both of them should call accused and inquire from him why he was following victim-K. This witness further denied that Prem Singh Prajapati in front of him and PW-4 Naresh beg pardon touching their feet and by saying that he has committed wrong and he has called victim-K to play with a lamb and out of lust, he committed wrong with victim and when she cried, he pressed her mouth and she became unconscious and due to fear he had thrown her in the pond. This witness denied the suggestion that on mobile phone that he has given this information to the SHO.

This witness stated that there is no enmity in the family of the informant and the accused. In cross examination by the defence counsel, this witness stated that police never recorded his statement.

Similar is the statement of PW-4, who was also declared hostile are stated on the same line as stated by PW-3. This witness stated that about one month ago, he came to know that he is witness in the court when he received the summon from the Court. In cross examination by the public prosecutor again similar suggestion regarding giving information to the SHO from his mobile number and recording of his statement under Section 161 Cr.P.C. in case diary was denied.

This witness further stated that victim-K did not come to his house on 10.7.2020 at about 11:00 am and about 1:00 pm his son Kunal dropped her at her home. Both these witness have stated that before coming to the Court they had met an advocate of their village and thereafter they come to depose in the Court. Trial court has taken adverse view of this fact that after due legal consultation they have not supported the prosecution version, whereas the suggestion given to them in this regard by the public prosecutor was denied rather both the witness stated that they came to know that they are witness in the Court when they received the summon from the Court, and therefore, meeting an advocate may be to find out the nature of case in which they have been summoned by the Court and no adverse inference can be drawn.

Apparently, neither in the examination-in-chief nor in cross examination by ADGC, regarding their statement recorded in the case diary purported to be statement under Section 161 Cr.P.C., both the witness denied that they have made any such statement.

So far as the statement of PW-5- Rakesh Giri is concerned even this witness stated he has not seen Prem Singh playing with victim ‘K’ on 10.7.2020 and had no knowledge how she died. This witness was also declared hostile. In cross examination, he was confronted with the statement given to police, however he denied the same. He even denied suggestion that for not giving the statement, he had verbal altercation with the family of Arun Sharma. He even denied from his suggestion, he has given information to the Investigating Officers that on 10.7.2020 at about 2:00-2:30 p.m., when he had gone to thrown garbage near the house of Arun Sharma, he had seen Prem Singh Prajapati playing with Victim ‘K’ by carrying her in his lap. He also denied that he had stated to the police that Prem Singh has committed the offence. Even this witness stated that he had met a lawyer of his village and thereafter he has come to the Court. Therefore, this witness like PW-3 and PW-4 has also not supported the prosecution version of the last seen of Victim ‘K’ in the company of accused Prem Singh. At the cost of repetition again it is noticed that even the time given by the prosecution of last seen by this witness coincide with the time assigned to PW-3 & PW-4 but none of them has seen each other at the relevant time and place which also makes the prosecution case doubtful. Therefore, even no credibility can be given to PW-5.

A perusal of the statement of PW-9, the second Investigating Officer, who took the investigation after adding of section 5/6 of POCSO Act show that it is, nowhere stated that he recorded statement of both PW3 and PW-4, either after inquiring this fact from them in person or by way of recording a separate statement. Even the suggestion given to PW-3 and PW-4 that from their mobile number they have given information to the Investigating Officer was also not so as stated by PW-8 and PW-9, the Investigating Officers. Therefore, prosecution in order to cover its case for not recording statement under Section 161Cr.P.C. gave suggestion to PW3 and PW-4 that on the mobile phone of the Investigating Officer, they have stated the fact about seeing Prem Singh Prajapati on 10.7.2020 following victim-K or that on 12.7.2020 accused came to their house and made extra judicial confession. Therefore, Court find that no reliance can be placed on the statement of PW-3 and PW-4 and prosecution has failed to prove the evidence of last seen as well as the extra judicial confession of the appellant before PW-3 and PW-4.

So far the statement of PW-1 Shivam Sharma, the informant is concerned, this witness has only given information to the police regarding missing of his niece victim-K on 10.7.2020 on which Chick FIR was registered at 19:07 pm. This witness stated that after recovery of dead body PW-3 Om Prakash and PW-4 Naresh informed him that accused committed rape with victim-K and to conceal his offence had drawn her in the pond in her unconscious condition.

This witness in cross examination stated that on 12.7.2020, PW-7 Akash Sharma told him about recovery of the dead body. He further stated that accused ply a horse cart (Tanga) and has five minor children. He further stated that in the complaint, he has not given name of any accused and after recovery of dead body of victim, he named Prem Singh Prajapati, Pushpendra alias Pushi and Vinod as he has doubt on these three persons on 12.7.2020.

PW-2 Arun Sharma grandfather of victim-K gave description of cloth worn by the victim-K, who went missing at about 2:00 pm on 10.7.2020. After her dead body was recovered on 12.7.2020, he has raised doubt on Prem Singh Prajapati, Pushpendra alias Pushi and Vinod. This witness also stated that PW-3 and PW-4 told him that Prem Singh Prajapati by committing rape of victim-K had drowned her in pond. In cross examination, this witness stated that on the date of incident her grand daughter , victim-K, had gone in the house of PW-4 Naresh as his son Kunal aged about 7 years, took her at about 11:00 am and at about 1:00 pm thereby Kunal left his grand daughter back him. However, this witness has not stated this fact to the Investigating Officer in the said matter.

This witness stated that while doing search they have also searched the house of Prem Singh Prajapati – accused and people who were searching alongwith him included PW-3 Om Prakash and PW-4 Naresh on 10.7.2020.

This also show that PW-3 and PW-4 never made any such statement to the police i.e. PW-8 and PW-9 about last seen of the accused on that date. Further this witness stated that on 12.7.2020, he has informed the Investigating Officer that PW-3 Om Prakash and PW-4 Naresh told him about the offence committed by the accused, but the police did not record the same in his statement. All these facts show that PW-3 and PW-4 never informed either PW-1 and PW-2 or the police about involvement of accused Prem Singh Prajapati for that precise reason that they did not support prosecution version.

It has come in the statement of PW-1 and PW-2 that when they raised suspicion on three persons namely Pushpendra alias Pushi, accused Prem Singh Prajapati and one Vinod, police arrested all of them. However, PW-8 and PW-9 did not utter a single word in this regard about investigation carried out with regard to Pushpendra alias Pushi and Vinod. This show that amongst all the three named persons, appellant Prem Singh Prajapati, who was a poor person, as it has come in evidence that he ply a horse cart (Tanga) and has five minor children, was an easy pick by the police to solve the mystery of murder and hush up the investigation because it is admitted by all the witness that senior police officer and media have taken up the matter and even dog squad was called which went to the house of the accused Prem Singh Prajapati on the date of incident and ultimately led police party towards forest,but no clue could be find. It is also worth noticing that no statement of accused – appellant was recorded under Section 164 Cr.P.C. for making any statement before the police admitting his guilt as it has come in the investigation of the Investigating Officer (PW-8) that the appellant has refused to make any such statement before the Court. However, no order of ACJM, Bulandshahr regarding this fact is proved on record. It is held in Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622, that in order to prove offence based on circumstantial evidence, the following conditions may be proved :

(152.) A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, 1973 2 SCC 793 where the following observations were made:

“ Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be; and ‘must be’ is long and divides vague conjectures from sure conclusion

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(153.) These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

In view of the judgment of Supreme Court in Sharad Birdhichand Sarda ( supra), this Court finds that prosecution has failed to prove the evidence of last seen as well as extra judicial confession from the statements of PW-3, PW-4 & PW-5. The statement of PW-7 is found to be totally unreliable. Further both PW-3 and PW-4, the two witnesses of alleged extra judicial confession made by the appellant- Prem Singh Prajapati confessing his guilt is also not proved as both these witnesses were also declared hostile and did not support the prosecution version despite lengthy cross examination by ADGC.

1-C. DNA Report - With regard to the DNA regard as reproduced above, in a very casual manner, the report is prepared that in EX-2 & 3 derived from biological serum of the victim in which allele was found, due to partial generation of DNA profile, it is not possible to match the same with blood sample of accused Prem Singh Prajapati through HID & Y-STR KIT was used. Similarly, from Ex-4 to 7 which are allele swab, oral swab, scalp hair and nails, partial DNA could be generated. Therefore, no decision could be taken regarding source 8 to 11, 17 and 18 of the accused person i.e. clothes, hairs, nail clippings, throats swab and all worth articles recovered from the spot. The report show that in DNA examination by Genetic Analyzer and Gene Mapper were used.

A perusal of zimni order of Trial Court would reveal that this DNA report was not even exhibited, as even the original of this report dated 3.11.2020 which is at Page-11 of the lower court’s record do not bear any exhibit number. However, as per Section 293 of Cr.P.C. same can be read in evidence only if a right to rebut is given to accused.

PW- 8 & 9, Investigating Officers, in examination-in-chief have nowhere relied upon this report, therefore, putting up this report to the accused while recording statement under Section 313 Cr.P.C., neither report was supplied to him nor opportunity was granted to him to cross examine the Investigating Officer. Question No. 13 in statement under Section 313 read as under : -

“Question No.13 : - The report of Forensic Science Lab, Lucknow along with SCD Document No.45A regarding blood sample, Vaginal Swab, Vulval Swab, anal swab, Nails, three hairs, nails, earth and clothes is filed in the Court, what you have to state about this report ; Answer- The report of the laboratory is prepared wrongly.”

In view of the judgment of the Supreme Court in Dharam Deo Yadav’s Case (Supra), Mukesh and Anr’s Case (Supra), Ravi s/o Ashok Ghumare’s Case (Supra) and in Manoj and others’ Case (Supra), as no consistent DNA profile could be generated to match blood sample of accused with the vaginal swab, anal swab, oral swab, and vulval swab of the victim, and therefore, no reliance can be placed as DNA report as rightly held by the trial Court.

1-D. Role of Two Investigating Officers - So far the role of two Investigating Officers is concerned, it is apparent that PW-8, S.I. Sukhpal, the first Investigating Officer has given description of the investigation carried on 10.7.2020 and 11.7.2020 and after recovery of dead body on 12.7.2020 he stated that he recorded the statement of PW-7, Naresh in C.D. on 12.7.2020 and also of Om Prakash Sharma. In cross examination, this witness stated that when dog-squad was called, the dog did not enter into house of any person and rather led the team towards the forest area and was not successful. This witness stated even searches were conducted in the house of PW-3 and PW-4 as well. As noticed above, on a specific question whether Akash Sharma informed that he had seen Prem Singh carrying victim ‘K’ towards the pond in perturbed condition at the time of  preparing Panchayatnama/ inquest report, this witness stated that may be so. In the second similar question, this witness stated that ‘Yes’ it was informed but he had told the computer operator- Adesh Panchang about this part of the statement but he omitted the write the same. When he was specifically asked whether in the Panchayatnama, this fact was added to which he stated that there no such provision. This witness also stated that for the first time in cross examination, he had stated that Akash Sharma told him about carrying deceased, therefore, as observed above, the statement of this witness with regard to information given to him by Akash Sharma which is not recorded in examination-in-chief and in cross examination, a vague explanation is given that he has informed computer operator- Adesh Panchang to type the same but he had omitted to do so which reflects that in fact no statement was made or if given, this Investigating Officer was so casual, unprofessional and unbelieving of responsible police officer that in the investigation that he even did not try to read the typed statement to and ensure that the correct facts are stated.

So far as PW-9, the second Investigating Officer, SHO-Umesh Kumar Pandey is concerned, he has recovered under shirt (banyan) which the accused had washed and hanged the same on a peg and from the said under shirt, three hairs were recovered and as per disclosure of the accused, the place where the offence was committed was near the wall and was wet. As noticed above, all the recoveries were subject to examination by FSL and no positive report regarding committing of rape by the appellant was found as per the DNA examination. This witness has also stated that when the accused was presented before A.C.J.M., Bulandshahar for recording his statement under Section 164 Cr.P.C., he refused however neither the application was moved before the A.C.J.M., Bulandsahr nor any such order of A.C.J.M, Bulandshahr is on record which also shows that this witness has conducted the investigation in a very casual and irresponsible manner.

Both PW-8 & PW-9 did not exhibit the FSL report in their statement in terms of Section 293 Cr.P.C. and, therefore, the accused had no right to cross examine both these witnesses on FSL report as admittedly the scriber of the FSL report was not examined because it did not support the prosecution version. No explanation has been given by both the Investigating Officers i.e. PW-8 & PW-9 when a specific statement is made by the PW-2 that he had named three persons i.e. Pushpendra @ Pushi, Vinod and appellant- Prem Singh as suspect and the police has arrested all the three persons however both these witnesses are silent about the investigation carried out qua the other two persons.

Learned counsel for the appellant has raised argument that since the case was monitored by the Senior Police Officer and there was a political pressure and even the media had highlighted the same, therefore, in order to hush up the investigation, the appellant being a poor person who used to ply Tanga was a soft target by the Investigating Officer to involve him in the case and conclude the investigation cannot be ruled out.

As per the prosecution version, PW-3, PW-4 & PW-5 have recorded their statements under Section 161 Cr.P.C. with the Investigating Officer by giving information through their mobile phones. Both the Investigating Officers ( PW-8 & PW-9) did not record their statement by using audio video mode and rather recorded the same in the daily general diary in a casual manner. Thus, no separate statement under Section 161 Cr.P.C. was recorded by making a face to face investigation from PW-3 and PW-4 and PW-5 which could be contradicted in their cross examination. Therefore, both the Investigating Officers did not follow the procedure under Section 161(3) Cr.P.C., Section 162 Cr.P.C., read with Section 145 of Evidence Act, 1872.

Though, the learned AGA for State has submitted that this is a standard procedure in the entire State of Uttar Pradesh that statement under Section 161 Cr.P.C. are recoded in general diary only, however, no such instructions or notifications of the State Government contrary to the provision of Cr.P.C. is on record.

97. In view of the above, we hold that the finding recorded by the Trial Court that victim ‘K’ was subjected to penetrative sexual assault and was later on murdered is upheld. However, we find that three important links in the chain of circumstantial evidence i.e. last seen, extra judicial confession and DNA report could not be proved by the prosecution, in view of the detailed finding recorded above, to prove that the appellant- accused committed the offence and he is entitled to get benefit of doubt.

98. Therefore, the present appeal is allowed. The reference made by the Trial Court for confirmation of capital punishment is declined. The jail appeal filed by the accused appellant, Prem Singh Prajapati stands allowed. He is acquitted of the charges. He be released forthwith if not required in any other case on furnishing of requisite surety bonds.

99. The record and proceedings be sent back to the Trial Court forthwith.