VEERENDRA versus STATE OF MADHYA PRADESH

26. Krishna Kumar Malik’s case (referred supra) was rendered by a two-Judge Bench of this Court, wherein at paragraph 43 with respect to the matching of the semen, the following passage from Taylor’s Principles and Practice of Medical Jurisprudence, 2nd Edn. (1965) was extracted thus :- “Spermatozoa may retain vitality (or free motion) in the body of a woman for a long period, and movement should always be looked for in wet specimens. The actual time that spermatozoa may remain alive after ejaculation cannot be precisely defined, but is usually a matter of hours. Seymour claimed to have seen movement in a fluid as much as 5 days old. The detection of dead spermatozoa in stains may be made at long periods of 5 years. Non-motile spermatozoa were found in the vagina after a lapse of time which must have been 3 and could have been 4 months.” In paragraph 43 of Krishna Kumar Malik’s case, after extracting the above, it was further held : “Had such a procedure been adopted by the prosecution, then it would have been a foolproof case for it and against the appellant.” This Court went on to hold thus in Paragraph 44 therein :- “Now, after the incorporation of Section 53-A in the Criminal Procedure Code w.e.f. 23.6.2006, brought to our notice by the learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused.”

27. Evidently, the three Judge Bench in Sunil’s case (supra) considered Krishna Kumar Malik’s case carrying such observations and finding before coming to the conclusion that ‘a positive result of the DNA test would constitute clinching evidence against the accused if, however, the result of the test is in the negative i.e., favouring the accused or if DNA profiling had not been done in a given case, the weight of the other materials and evidence on record will still have to be considered’.

28. In view of the nature of the provision under Section 53A Cr.P.C and the decisions referred (supra) we are also of the considered view that the lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of VEERENDRA v. STATE OF MADHYA PRADESH [C. T. RAVIKUMAR, J.] the offence of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim. The upshot of this discussion is that even if such a flaw had occurred in the investigation in a given case, the Court has still a duty to consider whether the materials and evidence available on record before it, is enough and cogent to prove the case of the prosecution. In a case which rests on circumstantial evidence, the Court has to consider whether, despite such a lapse, the various links in the chain of circumstances forms a complete chain pointing to the guilt of the accused alone in exclusion of all hypothesis of innocence in his favour.

29. As a matter of fact, the decision in Rajendra Pralhadrao Wasnik’s case (supra), would also fortify our view. The Bench was considering review petitions in Criminal Appeal Nos.145-146 of 2011. That was a case involving rape and murder of a three (3) year old girl where the case was held as proved on the basis of circumstantial evidence. So also, in that case DNA evidence was not produced before the Court, in spite of samples being taken. Obviously, taking note of the unerring nature of the circumstantial evidence pointing only to the guilt of the accused and the other circumstances the trial Court convicted and awarded him capital punishment. The High Court confirmed not only the conviction but also the award of capital sentence. Originally, this Court dismissed the appeals and thereafter, the dismissed review petitions were restored for consideration solely in view of a Constitution Bench decision of this Court in Mohd. Arif Vs. Supreme Court of India reported in (2014) 9 SCC 737. In paragraph 79, this Court in Rajendra Pralhadrao Wasnik’s case held therein thus :- “Insofar as the present petition is concerned, we are of opinion that for the purposes of sentencing, the Sessions Judge, the High Court as well as this Court did not take into consideration the probability of reformation, rehabilitation and social re-integration of the appellant into society. Indeed, no material or evidence was placed before the courts to arrive at any conclusion in this regard one way or the other and for whatever it is worth on the facts of this case. The prosecution was remiss in not producing the available DNA evidence and the failure to produce material evidence must lead to an adverse presumption against the prosecution and in favour of the R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 43 of 43 appellant for the purposes of sentencing. The Trial Court was also in error in taking into consideration, for the purposes of sentencing, the pendency of two similar cases against the appellant which it could not, in law, consider. However, we also cannot overlook subsequent developments with regard to the two (actually three) similar cases against the appellant.”

30. In the light of the above referred decisions, the contentions of the appellant founded on the factum of non-holding of DNA profiling and the provision under Section 53A, is only to be repelled. As held in Sunil’s case (supra), a positive result of DNA test would constitute clinching evidence against the accused. But, a negative result of DNA test or DNA profiling having not been done would not and could not, for that sole reason, result in failure of prosecution case. So much so, even in such circumstances, the Court has a duty to weigh the other materials and evidence on record to come to the conclusion on guilt or otherwise of the appellant herein and that exactly what was done by the trial Court and then by the High Court, in the instant case.

31. Now, we will refer to other materials and evidence on record. PW-3, who is the maternal grandmother of the deceased deposed that the deceased was aged 8 years and was wearing a frock and jeans pant on the day of occurrence. She would further depose that herself and the deceased were in the house of Raju who is none other than the father of the appellant. As already noted, they are all relatives. PW-3 would depose that by about 08:30 pm Raju Badam sent the deceased for fetching a bundle of bidi from a nearby shop. Since then, she had not returned home alive.

32. The case unfolded by the prosecution through the witnesses to fix the culpability on the appellant constitute a chain of circumstances, including the “last seen theory”. The deceased was lastly seen with the appellant by PW-2 and PW-4. ‘Last seen theory’ is certainly applicable in a crime like the one on hand which was carried out on sly and in secrecy during night, in the absence of availability of any eye-witnesses. 32.1 In the decision in Nizam and Anr. Vs. State of Rajasthan [(2016) 1 SCC 550] this Court held that it would not be prudent to base conviction solely on ‘last seen theory’. This Court, obviously, sounded a caution that where time gap between ‘last seen’ and ‘time of occurrence’ is long it would be unsafe to base the conviction solely on the ‘last seen VEERENDRA v. STATE OF MADHYA PRADESH [C. T. RAVIKUMAR, J.] theory’ and held that in such circumstances, it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. 32.2 In State of Rajasthan Vs. Kashi Ram reported in (2006) 12 SCC 254, at paragraph 23 this Court held : “23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., AIR 1960 Mad 218:1960 Crl LJ 620.” 32.3 In Arabindra Mukherjee Vs. State of West Bengal [(2011) 14 SCC 352], while dismissing the appeal by the convict who stood sentenced for offences punishable under Section 302, 364, 120B and 201 of IPC, this Court held: “once the appellant was last seen with the deceased, the onus is upon him to show that either he was not involved in the occurrence at all or that he had left the deceased at her home or at any other reasonable place. To rebut the evidence of last seen and its consequence in law, the onus was upon the accused to lead evidence in order to prove his innocence.” 32.4 In Pattu Rajan Vs. State of Tamil Nadu [(2019) 4 SCC 771] this Court held in paragraph 63 thus :- “It is needless to observe that it has been established through a catena of judgment of this court that the doctrine of last seen, if proved, shifts the burden of proof on to the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on the part of the accused to furnish any explanation in this regard, as in the case on hand, or furnishing false explanation would give rise to strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances.” (Emphasis supplied) 32.5 The various aspects relating to the ‘last seen theory’, derived from the aforementioned decisions, are well-settled and hence, we do not think it necessary to burden this judgment with further authorities on the subject.

33. A scanning of the circumstances and the evidence adduced in the case on hand would reveal that conviction by the trial Court was not solely based on “last seen theory”. Naturally, the confirmation of the conviction and sentence in the stated manner by the High Court is also not solely based on the “last seen theory”. Obviously, to establish that the deceased was lastly seen with the appellant the prosecution had relied on the oral testimonies of PWs 2 and 4. Before adverting to their testimonies it is only worthwhile to refer to the oral evidence of PW-3, the maternal grandmother of the deceased. As noted earlier, she deposed that on the fateful day she was in the house of Raju along with the deceased and at about 08:30 pm Raju sent the deceased to purchase bidi and thereafter she did not return home. PW-3 would also submit that the deceased was then wearing an embroidered broad frock and a blue- coloured jeans. Her evidence was not seriously challenged. Now, we will refer to the evidence of PWs 4 and 2. It is enroute to the shop that the deceased girl went past the house of PW-4 viz., Pappu @ Patiram. Both PW-4 and the appellant are rickshaw pullers. PW-4 would depose that on 19.09.2014 himself, the appellant and one Mr. Rakesh were sitting in front of his house and were preparing to get intoxicated and he was making the pegs. He would depose that earlier the appellant had given him Rs.50 as drink-money and further that upon seeing the deceased, VEERENDRA v. STATE OF MADHYA PRADESH [C. T. RAVIKUMAR, J.] the appellant asked her where she was going and then followed her after promising them that he would return. Evidently, a feeble attempt was made to establish that PW-4 was entertaining animosity towards the appellant. Evidently, the suggestion was repudiated by him. Besides, putting the said suggestion nothing to shatter the credibility of PW-4 was brought out. Both the trial Court and the High Court found the testimony of PW-4 as uncontroverted and believable. When the evidence is to the effect that in the evening of that fateful day the appellant, PW-4 and another had gathered at the residence of PW-4, that too for intoxication, it can only be said that the suggestion of animosity was righty repelled by both the Courts.

34. Now, we will refer to the testimony of PW-2. He is the maternal grandfather of the deceased. But, that by itself cannot be a reason to discredit or to eschew his oral testimony. Both the trial Court and the High Court had analysed and appreciated the evidence of PW-2 acknowledging the said position. Evidently, they found no reason to disbelieve PW-2. Upon scrutiny of his testimony, we also found that despite his thorough cross-examination on behalf of the appellant, nothing to discredit his version was brought out. He deposed to the effect that he was sitting at the door of his house at Thakur Baba Road, Dabra and at about 8:00 to 8:30 in the night of the day of occurrence he had seen the accused following the deceased. He would also depose to the effect that thereafter the deceased had not returned. There is not even a suggestion to the effect that his house is not near to the road and it was not possible to see someone passing from there. PW-2 further deposed that the appellant is his nephew and that the deceased was his grand- daughter. He was one of the attesting witnesses to several prosecution documents including Ext.P2 Safina Form, Ext.P3 dead body panchayatnama, Ext.P4 arrest memo, Ext.P5 that carries the disclosure statement of the appellant and Ext.P6 which is the dead body recovery memo and its identification memo and in Court, he had testified all of them. He deposed to the effect that the body of the victim as also her dresses were recovered from the place of occurrence viz., bada of Jagan Sindhi at the instance of the appellant. The contention of the appellant is that since PW-2 being the grandfather of the deceased the prosecution ought to have examined independent witness to the mahazhars of seizures and recoveries. As noticed earlier, despite thorough cross-examination on behalf of the appellant nothing to discredit his evidence was elicited. There can be no two views that being related to the victim, by itself, is no reason at all to discredit the testimony of a witness. This position has been made clear by this Court in various decisions.

35. In Dalip Singh and Ors. Vs. State of Punjab reported in AIR 1953 SC 364, wherein four persons appealed against sentences of death imposed on them for conviction for a double murder, this Court held :- “A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate and innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” 35.1. In Khurshid Ahmed Vs. State of Jammu & Kashmir [(2018) 7 SCC 429], this Court while setting aside the order of acquittal and convicting the accused (the respondent therein) for charges under Section 302, 341 IPC, held that there could be no preposition in law that relatives ought to be treated as untruthful witnesses. On the contrary reason has to be shown when a plea of partiality is raised to show that the witness had reason to shield actual culprit and falsely implicate the accused, it was further held. In this case there is an added reason. PW-2 is also equi-related to the appellant-convict. The accused is his nephew. Therefore, the question is why should such a person who lost the granddaughter implicate his nephew in the case. The suggestion that he had a clash with the appellant was repudiated by him and still, no evidence to establish that suggestion was produced by the appellant. A suggestion to a witness when repudiated can have no relevance at all in the absence of any material produced, in accordance with law, to prove the factum suggested, certainly, subject to admissibility. Hence, the said VEERENDRA v. STATE OF MADHYA PRADESH [C. T. RAVIKUMAR, J.] suggestion is impactless and inconsequential. Taking note of the nature of the contention raised against the testimony of PW-2, idest, that he is related to the deceased, it is apposite to refer to another aspect. Noticeably, the appellant has taken up a contention in respect of the seizure/recoveries, involved in this case, that non-examination of Sri. Ganesh, the father of the deceased, is fatal to the prosecution as he being the other attesting witness to most of such documents. This would reveal the paradox and hollowness in the contentions of the appellant inasmuch as, he would contend that PW-2 being a relative of the deceased another independent witness ought to have been examined to prove the seizures and recovery and in the same breath he would raise contention against the non-examination of the father of the deceased to prove the same. In this regard it is relevant to note the position of law that evidence is only to be weighed and not to be counted and that it is essentially, for the prosecution to decide as to how many witnesses are to be examined to establish its case on any particular point. In this case the version of PW-2 as relates the fact that the deceased was lastly seen with the appellant would get support from the oral testimony of PW-4 Pappu @ Patiram. The evidence of PW-4 and the fact that nothing was elicited from PW-2 to discredit his version that the appellant was following the deceased there was no reason to disbelieve PW-2 on that issue. In short, there is no reason to mistrust the said material witnesses on the point that the deceased was lastly seen with the appellant as concurrently held by the trial Court and the High Court.

36. The evidence of PW-12 was actually taken as res gestae under Section 6 of the Indian Evidence Act, 1872 by the High Court. In Sukhar Vs. State of UP [(1999) 9 SCC 507] this court explained the said provision. It was held therein that the statement sought to be admitted, as forming part of res gestae, must have been made contemporaneously with the acts. Thus, it is evident that the essence of the doctrine of res gestae is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” that it becomes relevant by itself. A conduct of the accused after the incident may become admissible under Section 6 of the Evidence Act, though not in issue, if it is so connected with the fact in issue.

37. The statement of PW-12 is to the effect that after finishing his work he was returning home during the night, at about 9 o’clock. He would depose that he saw the appellant then coming out of bada of Jagan Sindhi and dusting his clothes. It is true that a suggestion was put to him, while being cross-examined, that he had not actually seen the appellant coming out of the bada and he was deposing otherwise due to animosity with the appellant. Though PW-12 had repudiated the said suggestion, the appellant had not adduced any further evidence to establish the same. A careful scanning of the evidence of PW-12 would reveal that he had categorically stated that he knew the appellant-accused and on the fateful day he had seen him coming out of the bada of Jadan Sindhi. Applying the doctrine the evidence of PW-12 that he had seen the appellant at about 9:00 pm on the fateful day, coming out of the bada of Jagan Sindhi and dusting his clothes, is admissible under Section 6 of the Evidence Act. It was treated as another incriminating circumstance against the appellant. There can be no doubt with regard to the position that he is an independent witness though he was described as a ‘chance witness’. In this context it is relevant to refer to the decision in Chanakya Dhibar Vs. State of West Bengal (2004 (1) Crimes 196) whereas this Court observed thus :- “In a murder trial by describing the independent witness as ‘chance witness’ it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passerby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere ‘chance witnesses’. The expression ‘chance witness’ is borrowed from countries where every man’s home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man’s castle. It is quite unsuitable an expression in a country where people are less formal and more casual.” We referred to the aforesaid decision to give emphasis on the aspect that description of a witness as ‘chance witness’ cannot and will not by itself denude the admissibility or relevance of the evidence of such a witness if nothing was brought out to make his version suspicious and thereby unacceptable. It is to be noted that despite cross-examining PW-12 on behalf of the appellant nothing to make his version suspicious and untrustworthy was brought out. He deposed that he knew the VEERENDRA v. STATE OF MADHYA PRADESH [C. T. RAVIKUMAR, J.] appellant and further that at about 9:00 pm he had seen him coming out of the bada in question and dusting his clothes.

38. The evidence of PW-6 (Jagdish @ Jagan) is to the effect that he is the son of Laxmibai, the owner of the bada which is the occurrence place. According to him, the said property was purchased by his mother and its eastern and western boundaries are respectively Thakurdas Baba Road and Dhan mill. He would further depose thus :- “On the aforesaid plot, four rooms were already constructed. Presently, the aforesaid rooms and the plot are not in use. Presently, the plot is in the shape of a Bada (verandah), whose boundary is broken. The rooms are in dilapidated condition.” According to him, at that place, miscellany (empty sacks) of the mills have been kept and the fallen clay wall of the Bada gives easy access to the Bada, and it is not worthy for use. The evidence of PW-6 on the aforesaid aspects remains unchallenged. It is to be noted that it is from such a place, which is in a dilapidated and unusable condition, that the appellant was seen coming out during the night by PW-12. Moreover, the corpse of the victim was recovered from there the very next day, based on Ext.P5 disclosure statement of the appellant and at his instance.

39. It was on 20.09.2014 at about 04:00 pm that the appellant was arrested. Ext.P4 is his arrest memo. While in custody he gave Ext.P5- disclosure statement regarding the concealment of the dead body of the deceased as also her dresses. The factum of the appellant having made such a disclosure statement as also their subsequent recovery is proved through PW-2. PW-19 deposed that he had recorded Ext.P5 memo. PW-16 Jitendra Nagaich, the then Station House Officer, Police Station, Dabra, deposed to the effect that along with the appellant they proceeded to the place of occurrence, as shown by the appellant and from there the dead body of the victim, concealed beneath the gunny bags, was recovered at the instance of the appellant. They would also depose that the body was seen in disrobed condition. The dresses of the deceased were recovered from the place of occurrence itself. The oral evidence of PW2 and PW16 that the corpse of the deceased girl and her dresses were recovered from the said place of occurrence, at the instance of the appellant, gained corroboration from the oral testimonies of PW-5 Mr. Sonish Vasistha, a journalist and PW-11 Mr. Deepak Shukla, who was the then Tehsildar and Executive Magistrate of the locality.

40. In the decision in Govindaraju @ Govinda Vs. State [(2012) 4 SCC 722] this Court held that there would be nothing wrong in relying on the testimony of police officers if their evidence is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence. In the light of the fact that nothing was brought out to discredit the testimonies of PW-16 and PW-19 and their oral testimonies gained corroboration from the testimonies from PWs 2, 5 and 11 it can only be held that the aforesaid aspects were rightly appreciated by the Courts below and taken as circumstances against the appellant.

41. The recovery of the dead body, which was in a concealed condition from an unused and dilapidated building based on the disclosure statement of an accused is a crucial incriminating circumstance. In the decision in Jaharlal Das Vs. State of Orissa [AIR 1991 SC 1388], this Court held therein that the discovery of the body at the instance of the accused is a crucial circumstance, in a case resting on circumstantial evidence. This position was iterated in Mohd. Mannan @ Abdul Mannan Vs. State of Bihar [(2011) 5 SCC 317].

42. Now, we will advert to the other incriminating circumstances taken into consideration by the High Court to confirm the conviction of the appellant for the stated offences.

43. The impugned judgment would reveal that the High Court had interfered with the conviction of the appellant under Section 376A IPC. Among other things, it also evident that on reappreciation of the evidence the High Court disagreed with and reversed the finding of the trial Court in regard to the admissibility and evidentiary value of the recovery of an underwear (Article F-described as shaddy) from the occurrence place and also its result on analysis. Nonetheless, the High Court went on to consider the question whether the rest of the circumstantial evidence and the supporting materials would unerringly point to the guilt of the appellant alone. The said approach cannot be said to be wrongful or illegal and in fact, it is the rightful approach in view of the fact that the conviction of the appellant was based on various circumstantial evidences, in the light of the decision of this court in State of West Bengal Vs. Dipak Haldar & Anr. [(2009) 7 SCC 288]. Evidently, the High Court had considered the cumulative effect of the rest of the circumstantial evidences and materials supporting them. In Dipak Haldar’s case this court held thus:- VEERENDRA v. STATE OF MADHYA PRADESH [C. T. RAVIKUMAR, J.] “17. In a case based on circumstantial evidence, the court is required to consider whether the cumulative effect of all the circumstances leads to a conclusion that the same was a case of murder and the accused was responsible for such murder. A conviction can be based on circumstantial evidence if it is of such a character that the same is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. The incriminating circumstances that are being used against the accused must be such as to lead only to a hypothesis to reasonably exclude every possibility of his innocence. 18. To put it differently, the court should find out whether the crime was committed by the accused and the circumstances proved formed themselves into a complete chain, which clearly points to the guilt of the accused. If on the other hand, the circumstances proved against the accused are consistent either with the innocence of the accused or raise a reasonable doubt about the way the prosecution has alleged the offence is committed, the accused would be entitled to the benefit of doubt.” (Emphasis added) We are of the considered view that a different approach in re- appreciating the evidence would have defeated dispensation of justice, as in cases based on circumstantial evidence also it is not the quantity of the evidence that counts, but it is its quality. In other words, the question is only whether a complete chain of circumstantial evidence of such a character that the same is wholly inconsistent with the innocence of the accused and is consistent only with his guilt, is available. 44. PW.16-Shri. Jitendra Nagaich proved Ext.P-8 Seizure memo by which a pants and a shirt were recovered from the residence of the Appellant. PW-2 also deposed to the same effect and he testified his thumb impression in Ext.P-8 Seizure memo. In Ext.P-21 FSL Report human blood was found on the said pants (article-C). True that the serological part of Ext.P-21 report did not indicate the group of the blood stains found in the pants. This aspect was highlighted by the appellant before the High Court as also before us to contend that in view of the failure of the prosecution to establish that the blood stains found thereon belonged to the deceased it could not in anyway connect him with the crime and hence, could not have been taken as an incriminating circumstance against him. At the first blush this contention would appear to be attractive and acceptable. However, as per the impugned judgement the High Court had rightly repelled the said contention by relying on the decision of this court in Kansa Behera Vs. State of Orrisa (AIR 1987 SC 1507). In the said decision this Court exposited that when conviction is to be recorded solely on the basis of presence of blood stains in any article(s) seized from the accused concerned the prosecution has to prove beyond doubt that the blood found on that article(s) is that of the deceased and for that the group of the blood found on the seized article(s) should match with that of the deceased upon their grouping. At the same time, it was further held therein that when other circumstances are available non-detection of blood group by itself would not be fatal. The decision of this Court in R. Shaji Vs. State of Kerala [(2013) 14 SCC 266] also assumes relevance in this context. This court held thus:- “30. It has been argued by the learned counsel for the appellant that as the blood group of the blood stains found on the chopper could not be ascertained, the recovery of the said chopper cannot be relied upon. 31. A failure by the serologist to detect the origin of the blood due to disintegration of the serum does not mean that the blood stuck on the axe could not have been human blood at all. Sometimes it is possible, either because the stain is insufficient in itself, or due to haematological changes and plasmatic coagulation, that a serologist may fail to detect the origin of the blood in question. However, in such a case, unless the doubt is of a reasonable dimension, which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this regard. Once the recovery is made in pursuance of a disclosure statement made by the accused, the matching or non-matching of blood group(s) loses significance. (Vide Prabhu Babaji Navle v. State of Bombay, Raghav Prapanna Tripathi v. State of U.P., State of Rajasthan v. Teja Ram, Gura Singh v. State of Rajasthan, John Pandian v. State and Sunil Clifford Daniel v. State of Punjab.) 32. In view of the above, the Court finds that it is not possible to accept the submission that in the absence of a report regarding the origin of the blood, the accused cannot be convicted, for it is only because of the lapse of time that the blood could not be VEERENDRA v. STATE OF MADHYA PRADESH [C. T. RAVIKUMAR, J.] classified successfully. Therefore, no advantage can be conferred upon the accused to enable him to claim any benefit, and the report of disintegration of blood, etc. cannot be termed as a missing link, on the basis of which the chain of circumstances may be presumed to be broken.” (Emphasis added) The evidence on record in the case on hand would reveal that conviction of the appellant herein was not based solely on a presumptive finding that the blood stains present in the pants (Article-C) seized from the residence of the appellant is that of the deceased. At the same time, it is a fact that it was taken as one of the incriminating circumstances. It is not the case of the appellant that the said pants was not the one recovered from his residence. In fact, under Ext.P8 it was recovered from his residence and that fact was proved through PWs 2 and 16. Ext.P21 would reveal that upon analysis the blood stains stuck thereon were ascertained to be of human origin. In the light of Shaji’s decision (supra) once the blood stains were ascertained as that of human origin the mere non-detection of blood group would be of no consequence. Despite the difference in factual situation the exposition of law that on account of mere non-detection of blood group no advantage could be conferred upon the accused to enable him to claim any benefit in such situation. Certainly, in such circumstances a case of missing link in the chain of circumstances could not be claimed on that sole score and at the same time, absence/failure of explanation from the appellant when the said incriminating circumstance was put to him during his examination under Section 313 Cr.P.C. would work out against him. In these circumstances, the Courts below cannot be found in fault in taking it as an incriminating circumstance against the appellant. 45. As noted earlier, another incriminating circumstance considered against the appellant is the presence of nail marks on his face and neck and also his failure to offer explanation therefor. In this regard the evidence of PW-17 (Dr. Harish Arya) with Ext.P24-MLC was relied on. PW-17 was the doctor who examined the appellant when he was produced for medical examination after his arrest. He found the following four nail scratches on the body of the appellant: – 1. 1.5 cm x .02 mm on the left side neck near angle of left jaw. 2. 1 cm x 2 mm on left side of neck in front of injury no. 1. 3. 0.5 cm x 2 mm on left cheek. 4. 0.5 cm x 2 mm over angle of left jaw. 46. As per PW-17 those injuries were found on him on 21.09.2014 at about 1:00 pm and those injuries were caused within 48 hours before his examination. When this incriminating circumstance was put to the appellant during his examination under Section 313 Cr.P.C., he did not offer any explanation as to how such injuries were caused. Obviously, the trial Court found that the appellant sustained such injuries in the incident in question that occurred on 19.09.2014 at about 09:00 pm, after taking into account the evidence of PW-17 with Ext.P24 and in the absence of explanation from the appellant as to how those injuries have been caused. The High Court did not disturb the said conclusion. We find no illegality or infirmity on such conclusion and finding. 47. We have already observed that since the High Court had interfered with the conviction of the appellant under Section 376A IPC the question whether the rest of the incriminating circumstances formed a complete chain leading solely to the guilt of only appellant in exclusion of all hypothesis in favor of his innocence, as held by the High Court. We have already considered in detail all the incriminating circumstances and materials available to support them that weighed with the High Court. It is absolutely unnecessary to refer to each of them again. Suffice it to say that they would go to show that despite what are eschewed a continuous and complete chain of circumstances and materials supporting them, is available and they are wholly inconsistent with the innocence of the appellant and consistent only with his guilt. Above all, it is evident that an additional link is available in this case owing to the failure on the part of the appellant to explain all the aforesaid incriminating circumstances. While being examined under Section 318, Cr.P.C. in respect of all questions his answers were either ‘it is false’ or ‘I do not know’. There is absolutely no case for the appellant that all the incriminating circumstances were not put to him. In view of Pattu Rajan’s case (supra) and other decisions such as, Trimukh Maroti Kirkan Vs. State of Maharashtra (2006 AIR SCW 5300) offering no explanation on incriminating circumstances mentioned above would become an additional link in the chain of circumstances. The cumulative effect of all the aforesaid circumstances, referred to in detail hereinbefore, would definitely justify the finding of the High Court as to the guilt of the appellant. VEERENDRA v. STATE OF MADHYA PRADESH [C. T. RAVIKUMAR, J.] 48. The trial Court and also the High Court had concurrently concluded that the death of the victim is homicidal in nature. We have found, based on the evidence on record, that the Courts have rightly found that the victim was raped. The diabolic and gruesome manner in which the appellant had ravished the hapless girl is evident from the grave injuries on her pudenda. There occurred perennial tear of grade fourth extending up to anus and that her uterus was torn and was coming out from the vagina. As noticed above, the vaginal swab on examination revealed the presence of blood and semen. Hence, the finding that the deceased was subjected to rape warrants no interference. 49. Though the appellant had disputed the age of the deceased before the trial Court, the impugned judgment would reveal that the said contention was given up at the appellate stage. When that be so, the appellant could not now be permitted to dispute the age of the deceased at the time of occurrence in these appeals. Even otherwise, the evidence on record would reveal that PWs 1 to 3, who are respectively the mother, the maternal grandfather and the maternal grandmother of the victim, had deposed that the deceased was aged 7-8 years. PW-1 would further depose that the deceased was studying in Class-I in the Govt. School situated near Laddaram. PW-10 who along with the Dr. Asha Singh performed autopsy on the body of the victim and prepared Ext.P17 report noted therein that the deceased appeared to be of 8 years old and he had also deposed to that effect while being examined before the Court. That apart, PW-9 who was the Headmistress-in-charge in Govt. Primary Boys School, Jawaharganj, brought and proved Ext.P14 – School Admission Application of the deceased, Ext.P15 – Admission Register and the copy of which was marked as Ext.P15C and also and also Ext.P16 which is her age verification Certificate issued from the school. They would disclose her Admission Number as 1937 and the date of birth as 10.09.2006. Her evidence was not seriously challenged by the appellant during the cross-examination. At any rate, no contra-evidence was adduced in this regard by the appellant. Taking into account the nature of the commission of rape revealed from the evidence on record and discussed hereinbefore the concurrent finding of the courts below that the appellant has committed the offence of aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act also invites no interference. 50. The question, now to be considered is whether the homicidal death of the victim amounts to murder or whether it falls either under Section 304(1) or 304(2) as contended by the appellant. The impugned judgment would reveal that the High Court concurred with the finding of the trial Court that the homicidal death of the victim amounts to murder. The right approach in cases of culpable homicide is to first find out whether the offence falls under any of the four clauses viz., clauses firstly to fourthly under Section 300 IPC. If it is so found, then the Court has to see whether the case is covered by any one of the five exceptions to section 300 IPC, which would make a culpable homicide ‘not amounting to murder’. The offence, if proved, to fall under one of the said exceptions would be punishable under Section 304, either under Part 1 or Part 2 as the case may be, or otherwise it would be murder punishable under Section 302 IPC. In the case on hand both the trial Court and the High Court, had analysed evidence on record and found that the appellant had pressed the neck of the victim so hard unmindful of the fact that she was aged only 8 years and caused internal hemorrhage. The cause of death was asphyxia due to throttling. The nature of the injuries found on the neck of the deceased would reveal the pressure exerted by the appellant on the neck. The fact that the victim was a hapless girl aged only 8 years has to be taken into account while considering the question. Intention is a subjective element and every sane person must be presumed to intend the result that his action normally produces. Hence, constriction of the neck of a girl child aged about 8 years by fingers or palm by a young man aged 25 years, with such force to cause the injuries mentioned hereinbefore cannot be said to be sans intention to take her life. If the said act was subsequent to commission of rape in the diabolic and gruesome manner revealed from the grave injuries sustained on her private parts, causing death alone can be inferred from the circumstances. If the act of constricting the neck with such force resulting in the stated injuries preceded the offence of rape, then, the manner by which she was ravished should be taken only as an act done knowingly that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. Thus, viewing in any angle the homicidal death would fall either Clause 1 or Clause 4 of Section 300 IPC. A feeble attempt was made by the appellant to contend that the Courts had erred in finding the appellant guilty under Section 300 IPC, punishable under 302 IPC and that if at all he has to be convicted for causing death of the victim it ought to have been under Section 304 IPC. VEERENDRA v. STATE OF MADHYA PRADESH [C. T. RAVIKUMAR, J.] It is to be noted, once it is found that the act falls under any one of the 4 clauses under Section 300 IPC, to bring it out of its purview it must be proved that it falls under any one of the five exceptions to Section 300 IPC. There is nothing on record and no contention was also raised by the appellant, with support of material, to show that any one of the said five exceptions attracts in this case. In fact, the only contention urged and also taken in the written submission by the appellant is that the deceased had died due to an injury on her neck which had occurred quite naturally during the commission of the rape. We have no hesitation to hold that the said contention is palpably untenable and at any rate, not at all sufficient to bring the offence under any one of the five exceptions to Section 300 IPC. The long and short of the discussion is there is no reason to interfere with the finding of the Trial Court, which was confirmed by the High Court, that the appellant is guilty of committing murder punishable under Section 302 IPC. Thus, on a careful examination of the matter in its entirety, we do not find any perversity or manifest illegality with respect to the concurrent finding of the trial Court and the High Court that the appellant herein had committed offences punishable under Section 302 IPC, 376(2)(i) IPC and Section 6 of the POCSO Act. 51. As noticed hereinbefore, upon conviction for each of the offence under Section 376(2)(i) IPC and under Section 6 POCSO Act, the appellant was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2000/- and in default of payment of fine to undergo imprisonment of one year. No extenuating circumstances warranting an interference with the sentence thus imposed by the trial Court, which was confirmed by the High Court, for the conviction for the stated offences were brought to our attention by the appellant. 52. The next question is whether death sentence awarded by the trial Court and confirmed by the High Court for the conviction of the offence of murder be maintained or substituted? This penalty is awardable to a culprit only the category of the case falls under ‘rarest of rare cases’, the culprit has become a threat to the society at large and beyond reformation and his elimination is the only way for eradication of the threat. For deciding the said question various aspects have to be considered. On a careful scanning of the consideration made by the trial Court as also the High Court for awarding the sentence for the conviction under Section 300 IPC, punishable under section 302 IPC, we are of the view that the question regarding the correctness of the death sentence awarded to the appellant requires further consideration, taking into account the statutory requirements under Section 354(3) Cr.P.C. For awarding termination of natural life, a careful scrutiny is required. The statutory requirements under Section 354(3) Cr.P.C. are as under : “When the conviction for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such offence.” 53. On the aforesaid subject this Court has already enunciated the principles. A careful survey of such decisions was made by this very three-Judge Bench in the decision in Pappu Vs. The State of Uttar Pradesh (Criminal Appeal Nos.1097-1098/2018, pronounced on 9.2.2022. Paragraph 49 of the decision in Shankar Kishanrao Khade Vs. State of Maharashtra reported in (2013) 5 SCC 546, highlighting the requirement of application of ‘crime test’, ‘criminal test’ and ‘rarest of rate test’ was referred therein. In the said paragraph, with reference to the previous decisions, the aggravating circumstances (crime test) and the mitigating circumstances (criminal test) were narrated as hereunder: “49. In Bachan Singh and Machhi Singh cases, this Court laid down various principles for awarding sentence: (Rajendra Pralhadrao case, SCC pp. 47-48, para 33) “‘Aggravating circumstances — (Crime test) (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions. (2) The offence was committed while the offender was engaged in the commission of another serious offence. (3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person. (4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. VEERENDRA v. STATE OF MADHYA PRADESH [C. T. RAVIKUMAR, J.] (5) Hired killings. (6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. (7) The offence was committed by a person while in lawful custody. (8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, 90 murder is of a person who had acted in lawful discharge of his duty under Section 43 of the Code of Criminal Procedure. (9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. (10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person. (11) When murder is committed for a motive which evidences total depravity and meanness. (12) When there is a cold-blooded murder without provocation. (13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society. Mitigating circumstances — (Criminal test) (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course. (2) The age of the accused is a relevant consideration but not a determinative factor by itself. (3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. (4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. (5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. (6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime. (7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused.’” This Court further said: – “52. Aggravating circumstances as pointed out above, of course, are not exhaustive so also the mitigating circumstances. In my considered view, the tests that we have to apply, while awarding death sentence are “crime test”, “criminal test” and the “R-R test” and not the “balancing test”. To award death sentence, the “crime test” has to be fully satisfied, that is, 100% and “criminal test” 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the “criminal test” may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R test depends upon the perception of the society that is “society-centric” and not “Judge-centric”, that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors VEERENDRA v. STATE OF MADHYA PRADESH [C. T. RAVIKUMAR, J.] like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges.” 54. After taking into account the same and such other decisions specifically referred to therein, in Pappu’s case (supra) it was held thus:- “41. It could readily be seen that while this Court has found it justified to have capital punishment on the statute to serve as deterrent as also in due response to the society’s call for appropriate punishment in appropriate cases but at the same time, the principles of penology have evolved to balance the other obligations of the society, i.e., of preserving the human life, be it of accused, unless termination thereof is inevitable and is to serve the other societal causes and collective conscience of society. This has led to the evolution of ‘rarest of rare test’ and then, its appropriate operation with reference to ‘crime test’ and ‘criminal test’. The delicate balance expected of the judicial process has also led to another mid-way approach, in curtailing the rights of remission or premature release while awarding imprisonment for life, particularly when dealing with crimes of heinous nature like the present one.” 55. On going through the judgment of the trial Court and the High Court, we are of the considered view that in handing down capital sentence what had weighed with the Courts are the horrendous feature of commission of crime and the hapless state of the victim. The trial Court considered the question of sentence and awarded the same on the very same day on which the appellant was convicted. We shall not be understood to have held that this is absolutely illegal and impermissible. Ultimately, what is required is consideration of the aggravating and mitigating circumstances with application of mind. They were not given the proper attention while considering the question of awarding the sentence for conviction under Section 302 IPC, in the case on hand. In the said circumstances, we will proceed to consider the question of sentence in the present case bearing in mind the principles enunciated by this Court in the matter of awarding the capital sentence. The trial Court as also the High Court arrived at the conclusion that the act of the appellant herein invited the extreme indignation of the community and therefore, it deserves a deterrent sentence so as to give a message to the society that such crimes should not be repeated by anyone. In short, we are of the considered view that the ‘crime test’ and the ‘criminal test’ require to be followed before awarding capital sentence, did not gather the required attention of the trial Court as also the High Court. 56. It is true that all murders are inhuman. For imposing capital sentence, the crime must be uncommon in nature where even after taking into account the mitigating circumstances the Court must be of the opinion that the sentence of imprisonment for life is inadequate and there is no alternative but to impose death sentence. The heinous and brutal nature of the commission of crime, viz., brutal rape and murder of an eight-year old girl child who is none other than the daughter of his own cousin, that too in a hapless situation, is definitely an aggravating circumstance. The nature of the injuries caused on the private parts of the victim as is evident from the evidence of PW10 with Ext.P17 report would definitely shock the conscience. At the same time, the principles enunciated by this Court in the matter of awarding of death sentence and in such circumstances, the undisputed and indisputable fact that the appellant had no criminal antecedents and he hails from a poor socio-economic background and also his unblemished conduct inside the jail cannot go unnoticed. So also, it is a fact that at the time of commission of the offence the appellant was aged 25 years. Hence, viewing the issue taking into account the aforesaid aspects, we do not find any reason to rule out the possibility and the probability of the reformation and rehabilitation of the appellant. The long and short of the discussion is that the present case cannot be considered as one falling in the category of ‘rarest of rare cases’ in which there is no alternative but to impose death sentence. 57. In the aforesaid circumstances, the next question is what is the comeuppance for the conviction for offence of murder in this case. In the decision in Swamy Shraddananda Vs. State of Karnataka [(2008) 13 SCC 767], taking into account the tenets of penology and with a view to have a just, reasonable and proper course in a case where the Court is of the opinion that sentence for life is inadequate but imposition of death sentence is unwarranted this Court adopted the course of awarding life imprisonment without application of the provisions of VEERENDRA v. STATE OF MADHYA PRADESH [C. T. RAVIKUMAR, J.] premature release/remission before an actual imprisonment for a definite period of time. This position was iterated with agreement in the decision in Union of India Vs. Sriharan [(2016) 7 SCC 1], thus : “We hold that the ratio laid down in Swamy Shraddananda (supra) that a special category of sentence; instead of death can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and put that category beyond application of remission is well-founded and we answer the said question in the affirmative. 58. Thus, taking into account the fact that in the case on hand a hapless 8 year old girl child, who is none other than the daughter of appellant’s cousin sister raped and murdered and that too, in an extremely brutal manner revealed from the evidence on record, we are of the considered view that course adopted in the decision in Swamy Shraddananda’s case (supra) and reiterated in Sriharan’s case (supra) has to be adopted in this case. In other words, even while commuting capital punishment, the appellant has to be awarded life imprisonment without application of the provisions of premature release/remission for a substantial length of period. On such consideration we are of the view that it would be just and proper to award punishment of imprisonment for life to the appellant for the offence punishable under Section 302 IPC, by providing for an actual imprisonment for a period of 30 (thirty) years without application of the provisions of premature release/remission. 59. In the circumstances, these appeals are partly allowed as hereunder: (i) The conviction of the appellant for the offences punishable under Section 302 and 376(2)(i), IPC and conviction for the offence punishable under Section 6 of POCSO Act is upheld and the sentences awarded to him for the conviction therefor, are confirmed, for the offence under Section 302 IPC; (ii) However, the death sentence awarded to the appellant for the offence under Section 300, IPC punishable under Section 302, IPC is commuted to that of imprisonment for life with the stipulation that he shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of thirty (30) years; (iii) The other terms of sentences awarded to the appellant including fine amount and default stipulations also stand confirmed. All the substantive sentences awarded to the appellant shall run concurrently. Ankit Gyan Appeal partly allowed. (Assisted by : Rahul Rathi, LCRA) VEERENDRA v. STATE OF MADHYA PRADESH [C. T. RAVIKUMAR, J.]