Vivek Agarwal, J
1. Criminal Appeal No.885/2021 is filed on behalf of Appellant No.1 Ram Prasad Ahirwar & Appellant No.2 Banshilal Ahirwar and Criminal Reference No.1/2021 is received from learned Additional Sessions Judge-Banda, District Sagar in pursuance of judgment dated 19.1.2021 passed by learned Additional Sessions Judge-Banda, District Sagar in Special Sessions Case No.49/2020 convicting Appellant No.1 Ram Prasad Ahirwar for the offence under Sections 363, 366, 376(DB), 302, 201 of the Indian Penal Code, 1860 (for brevity “I.P.C”) and sentencing him to suffer Rigorous Imprisonment for Seven Years, Seven Years, Death Penalty, Death Penalty, Rigorous Imprisonment for Seven Years with fine of Rs.1,000/, Rs.1,000/-, Rs.500/-, Rs.500/-, Rs.1,000/- respectively and in default of payment of fine to further undergo Rigorous Imprisonment for One Month for each of the offences.
2. Vide impugned judgment dated 19.1.2021 passed by learned Additional Sessions Judge-Banda, District Sagar in Special Sessions Case No.49/2020 Appellant No.2 Banshilal Ahirwar has been convicted for the offence under Sections 376(DB), 302, 201 of the I.P.C and sentenced to suffer Death Penalty, Death Penalty, Rigorous Imprisonment for Seven Years with fine of Rs.1,000/-, Rs.1,000/-, Rs.1,000/- respectively and in default of payment of fine to further undergo Rigorous Imprisonment for One Month for each of the offences.
3. The prosecution case in short is that the victim/deceased while studying in Class-VI had left her home on 13.3.2019 for giving examinations at Bhadrana Government School and when she did not return back till 12 Noon then Complainant/PW.1 (father of victim/deceased) and his wife (mother of victim/deceased) started searching the victim/deceased and it was informed by the School Authority that she had not come to give examinations. On 14.3.2019 PW.1, father of victim/deceased, lodged a missing person report at Police Station Banda, District Sagar alleging that he is a labourer, he has two daughters and three sons, the victim/deceased is student of Class-VI, she is 4 feet of height, her complexion is dusky, she was in school dress but did not return back to home. At his instance, Missing Person Report was registered vide Exhibit P/9 at Police Station Banda, District Sagar registering case pertaining to Crime No.195/2019 for the offence under Section 363 of the I.P.C and on the basis of the said Missing Person Report, the First Information Report was lodged by Assistant Sub Inspector R.S.Vishwakarma (PW.7) vide Exhibit P/10 and the case was taken in investigation.
4. During investigation, Ganni (PW.18) informed that he had visited the fields of Rambhagat Yadav for harvesting Gram Crops and when he was returning to his residence at about 5:00 PM then in the fields of Shankar Yadav, he saw dead body of a girl. He reported that the body was lying without head. The aforesaid fact was narrated by him to Co-Villager Vikram Singh (PW.13). On the basis of the said report, Mama of victim/deceased Jasrath (PW.14) lodged Merg Intimation vide Exhibit P/11. The dead body of victim/deceased was recovered from the fields of Shankar Yadav and head from the fields of Ramsewak Yadav. The author of Merg Intimation is Satish Singh (PW.8). The dead body of the victim/deceased was identified by Jasrath (PW.14) upon which Identification Panchnama was prepared vide Exhibit P/12. Dastyabi Panchnama (Exhibit P/13) was prepared in front of Jasrath (PW.14) and Chacha of the victim/deceased and after making necessary seizures vide Seizure Memo (Exhibit P/15), Safina Form (Exhibit P/16), Naksha Panchayatnama (Exhibit P/17) were prepared. The dead body of the victim/deceased was sent for postmortem after recording Dehati Nalishi. The postmortem was conducted by Dr.M.A.Qureshi (PW.11) alongwith Smt. (Dr) Kumud Sharma, who had examined internal organs of the victim/deceased and certified her death on account of hemorrhage and neurogenic shock as a result of complete cut section of head from the body. The report of the doctor is Exhibit P/18.
5. Learned Senior Counsel for the appellants proposes certain hypothesis, namely, the victim/deceased, whose date of birth is mentioned as 12.8.2008 had taken admission in Class-I on 7.7.2013. Her date of birth is doubtful and, therefore, the age of the victim/deceased cannot be said to be below 12 years. To bolster his submission, he places reliance on Exhibit P/8, Exhibit P/24, Exhibit P/25 and the testimony of Complainant/PW.1, (PW.2), Harprasad (PW.3) & Ramakant Gautam (PW.9). Exhibit P/8 is Hifazatnama in which it is mentioned that the Attendance Register of Class-VI was seized from the School and was given to the Head Master of the School in custody. Exhibit P/24 is the Certificate issued by the School Authority i.e Ramakant Gautam (PW.9) certifying that her name is mentioned at Page Nos.71 & 72 of the School Admission Register at Serial No.985 with date of birth as 12.8.2008. Exhibit P/25 is Admission & Discharge Register of the School in which the date of birth of the victim/deceased is mentioned as 12.8.2008 and the date of admission in School in Class-I as 7.7.2013.
6. Reading the evidence of the aforesaid prosecution witnesses, learned Senior Counsel for the appellants submits that the complainant/PW.1, father of the victim/deceased, in Paragraph No.9 of his cross-examination admits that when he had gone to the School to admit the victim/deceased, that time, he had no intimation about the age of the victim/deceased. He admits that he does not know as to in which year, the victim/deceased was born.
7. Referring to the testimony of PW.2, learned Senior Counsel for the appellants submits that PW.2 is the mother of victim/deceased. She admits that on 15.7.2019, when evidence was given, her younger son Murat was 13 years of age and the victim/deceased was 2 year younger to him. However, in Paragraph No.8, the complainant/PW.1 narrated the age of Murat to be 15 years and deposed that the victim/deceased was 4 year younger to him. Hence, there is material contradiction as to the age of the prosecutrix.
8. Referring to the testimony of Harprasad (PW.3), who is Head Master of Government Middle School-Bhadrana, learned Senior counsel for the appellants points out that this witness is admitting that he had not seen the birth certificate of the victim/deceased. He had also not seen the horoscope of the victim/deceased and except for what is mentioned in the Register, he does not know anything else.
9. Ramakant Gautam (PW.9) is Incharge Head Master of Government Primary School, Berkhedi, Development Block-Banda, District Sagar. He deposed that the dates of birth are recorded as per the details given by the guardians of the students. He admits that he is giving date of birth as per Dakhil Kharij Register. He admits that when the parents do not possess the birth certificate then they record the date of birth of the students on oral instructions of the parents. The victim/deceased was not less than 12 years of age on the date of incident and was infact more than 12 years of age because Murat’s age has come on record as 15 years and the mother is admitting that the victim/deceased was 2 year younger to Murat. Complainant/PW.1, father of the victim/deceased admits that he did not know the date of birth of the victim/deceased.
10. Learned Senior Counsel for the appellants places reliance on the judgment of the Apex Court in Birad Mal Singhvi versus Anand Purohit 1988 (Supp) SCC 604 and specifically draws attention of this Court to Paragraph Nos.14 & 17 of the judgment to point out that the entries regarding dates of birth contained in the Scholor’s Register and the Secondary School Examination have no probative value, as no person on whose information the date of birth of the candidate was mentioned in the School Record, is examined. The entry contained in the Admission Form or in the Scholor’s Register must be shown to be made on the basis of the information given by the parents or the person having special knowledge about the date of birth of the person concerned. The truth or otherwise of the facts in issue, namely, the date of birth of the candidate as mentioned in the documents must be proved by admissible evidence i.e.by the evidence of those persons, who could vouchsafe for the truth of the facts in issue.
11. Learned Senior Counsel for the appellants places reliance on Paragraph Nos.14 to 23 of the judgment of the Apex Court in C.Doddanarayana Reddy (Dead) by Legal Representatives & Others versus C. Jayarama Reddy (Dead) By Legal Representatives & Others (2020) 4 SCC 659 to contend that the onus was on the plaintiff to prove that he was a minor at the time of execution of Release Deed and as he failed to prove his date of birth, therefore, his suit was to be dismissed.
12. Learned Senior Counsel for the appellants places reliance on Paragraph Nos.13 & 15 of the judgment of the Apex Court in Manak Chand @ Mani versus State of Haryaya 2023 SCC Online 1397 wherein it is held that “in our opinion, the brief submitted by the prosecution with regard to the age of the prosecutrix in the form of School Register was not sufficient to arrive at a finding that the prosecutrix was less than 16 years of age especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused particularly when the age of the prosecutrix was such a crucial factor in the case”.
13. Learned Senior Counsel for the appellants places reliance on Paragraph No.26 of the judgment of the Apex Court in Sunil versus State of Haryana (2010) 1 SCC 742 wherein it is held that “in a criminal case, the conviction of the appellant cannot be based on an approximate date, which is not supported by any record. It was quite unsafe to base conviction on an approximate date”.
14. Learned Senior Counsel for the appellants places reliance on Paragraph No.20 of the judgment of the Apex Court in Satpal Singh versus State o Haryana (2010) 8 SCC 714 wherein it is held that “a document is admissible under Section 35 of the Indian Evidence Act, 1872 (hereinafter called as “Evidence Act) being a public document if prepared by a Government Official in exercise of his official duty. However, the question does arise as to what is the authenticity of the said entry for the reason that of admissibility of a document is one thing and probity of which is different”.
15. Learned Senior Counsel for the appellants places reliance on Paragraph Nos.40, 48 & 51 of the judgment of the Apex Court in Alamelu & Another versus State represented by Inspector of Police (2011) 2 SCC 385 wherein it is held that “admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the Transfer Certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth, is examined. It is noted by the Apex Court in Paragraph No.51 that “this Court in Rameshwar versus State of Rajasthan AIR 1952 SC 54 declared that corroboration is not sine qua non for a conviction in a rape case. In the aforesaid case, Vivian Bose, J speaking for the Court observed as follows:- (AIR P.57 Para 19).
“19….. The rule, which according to the cases has hardened into one and law, is not that corroboration is essential before there can be a conviction but the necessity of corroboration as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge”.
16. Learned Senior Counsel for the appellants places reliance on Paragraph Nos.40, 48 & 51 of the judgment of the Apex Court in State of Madhya Pradesh versus Munna @ Shambhoo Nath (2016) 1 SCC 696 wherein referring to the judgment of the Apex Court in Birad Mal Singhvi versus Anand Purohit (supra), principles have been laid down as to the admissibility of the age recorded in the School Register. Learned Senior Counsel also places reliance on the judgment of the Constitution Bench of the Apex Court in Braj Mohan Singh versus Priya Brat Narain Sinha & Others AIR 1965 SC 282.
17. The second line of argument adopted by Shri Manish Datt, Senior Counsel for the appellants is that Appellant No.2 Banshilal Ahirwar handled the dead body from the time of recovery and that explains the blood stains on the shirt of Banshilal Ahirwar and, therefore, that presence of blood stains of the victim/deceased on the shirt of Appellant No.2 Banshilal Ahirwar is not sufficient to record conviction.
18. Reading the Identification Panchnama (Exhibit P/12), learned Senior Counsel for the appellants points out that as a witness, it was signed by Banshilal Ahirwar and Jashrath (PW.14). Similarly, Dastyabi Panchnama (Exhibit P/13) was signed by Banshilal Ahirwar and Jashrath (PW.14). Seizure Memo (Exhibit P/14) was also signed by Banshilal Ahirwar alongwith Jashrath as a witness. Exhibit P/18 is the postmortem report where the dead body was identified by Banshilal Ahirwar, Jagat and Jashrath (PW.14). Exhibit P/35 is a document to show that the dead body, after postmortem, was given to Banshilal Ahirwar for performing last rites.
19. The third ground is that the sealed items, which were given by Dr.M.A.Qureshi (PW.11), were preserved, namely, all the clothes found on the body, two vaginal slides, 3 to 4 ml of semen discharge collected from the vagina were handed over to Constable No.1444 Rakesh Rai for forensic examination.
20. It is submitted by learned Senior Counsel for the appellants that the postmortem was admittedly conducted on 15.3.2019 as is evident from Exhibit P/18. The time of postmortem is 12:30 PM. These items were given to Rakesh Rai on 15.3.2019 but Rakesh Rai (PW.21) states that on 16.3.2019, he had brought a sealed small plastic bottle allegedly containing semen extracted from the private part of the victim/deceased and the other items were given to Head Constable Dayashankar vide Exhibit P/47.
21. It is pointed out by learned Senior Counsel for the appellants that there is overwriting in the Seizure Memo (Exhibit P/47) and the date has been changed from 16.3.2019 to 15.3.2019 and as to where the samples remained from 15.3.2019 to 16.3.2019 causes a reasonable doubt as to the authenticity of the FSL report based on such adulterated samples.
22. The fourth submission made by learned Senior Counsel for the appellants is that the seizure of clothes of the victim/deceased is doubtful. The Seizure Memo (Exhibit P/47) prepared at Police Station Banda, District Sagar in presence of witnesses, Constable No.545 Pooran Yadav and Constable No.1126 Khilan Singh reveals that a sealed small plastic bottle containing semen extracted from the private part of the victim/deceased aged about 12 years was seized. Besides this, in a small packet, vaginal slides of the victim/deceased were sealed and in the third Container, the blood soaked clothes of the victim/deceased were sealed and there was a sealed sample of CHC-Banda, District Sagar. However, the Seizure Witness Khilan Singh is not examined and this fact is admitted by Satish Singh (PW.8) whereas another Seizure Witness Pooran Yadav was examined as PW.31, who had identified the Seizure Memo (Exhibit P/47). This witness had no knowledge about the articles as mentioned on the said packet nor he had seen the blood soaked clothes. Learned Senior Counsel submits that when sanctity of seizure itself is doubtful then any test report on the basis of those seized articles cannot be a good piece of evidence to uphold conviction.
23. It is submitted by learned Senior Counsel for the appellants that Pooran Yadav (PW.31) in his cross-examination admits that the said packet was not sealed at CHC-Banda, District Sagar in front of him. Dr.M.A.Qureshi (PW.11) admits in Paragraph No.7 of his cross-examination that he had sealed the clothes found over the body of the victim/deceased and the vaginal slides, which were two in number and 3-4 ml of semen discharge, which was collected from the vagina of the victim/deceased and they were preserved, sealed and given to Constable No.1444 Rakesh Rai for forensic examination. The Station House Officer Satish Singh (PW.8) has not said anything about the articles, which reached to him through Dayashankar and were sent to Forensic Science Laboratory for examination. Reading Paragraph No.9, he points out that the defence did not deem it proper to ask the concerned Station House Officer as to where the said articles were kept then it will not absolve them of their liability.
24. Learned Senior Counsel for the appellants places reliance on Paragraph No.151 of the judgment of Apex Court in Manoj & Others versus State of Madhya Pradesh (2023) 2 SCC 353 wherein it is observed that “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.
Learned Senior Counsel submits that when the place of keeping the articles till they were sent to the Forensic Science Laboratory is not known then it cannot be said that the quality of articles had not deteriorated.
25. Learned Senior Counsel for the appellants places reliance on Paragraph Nos.35, 36, 37 the judgment of the Apex Court in Rahul versus State of Delhi, Ministry of Home Affairs & Another (2023) 1 SCC 83 to contend that the DNA evidence is in the nature of opinion evidence as envisaged under Section 45 of the Indian Evidence Act, 1872 and like any other opinion evidence, its probative value varies from case to case. A reference is made to the observations by the Apex Court in Manoj & Others versus State of Madhya Pradesh (supra). Learned Senior Counsel submits that the 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. If the DNA evidence is not properly documented, collected, packaged & preserved then it will not meet the legal and scientific requirement for admissibility in a Court of law.
26. Learned Senior Counsel for the appellants places reliance on Paragraph No.9 of the judgment of the Apex Court in Modan Singh versus State of Rajasthan (1978) 4 SCC 435 to contend that the prosecution must also lead evidence to show that the articles seized were kept safely till sent to the Expert. Learned Senior Counsel submits that in the present case no evidence was collected by the Investigating Officer with regard to the first place of occurrence i.e. the house of Banshilal Ahirwar where allegedly the victim/deceased was raped and her privacy was violated, which leaves a long string of doubt as to the competency of the Investigating Officer and also to the intention of the Investigating Officer in thoroughly investigating the case because the incident took place at two places; firstly, in the house of Banshilal Ahirwar where abducted child was subjected to ravishing of her privacy and secondly, she was made to sleep to death either at the house of Banshilal Ahirwar or was carried to the field fromwhere a dead body was recovered in a severed manner i.e. head was severed from the body and both were lying at two different places.
27. Learned Senior Counsel for the appellants places reliance on the judgment of the Apex Court in State of Rajasthan versus Daulat Ram (1980) 3 SCC 303 to contend that the onus is on the prosecution to prove the entire case at the trial and if gaps or lacunae are left at the trial then the prosecution cannot be allowed at the appellate or revisional stage to fill up the same.
28. Learned Senior Counsel for the appellants places reliance on the judgment of the Apex Court in Criminal Trials Guidelines Regarding Inadequacy & Deficiencies, IN RE versus State of Andhra Pradesh & Others (2021) 10 SCC 598 to point out that a site plan of the place of occurrence of the incident is to be appended by the Investigating Officer to the Scene Mahazar or Spot Panchnama. The guidelines have been given for preparation of Spot Panchnama but learned Senior Counsel submits that these guidelines have been violated rather than followed in letter and spirit. Thus, it is reemphasized that once the samples were dispatched with some delay for FSL examination then there is a deemed contamination.
29. The seizure of Sickle (Exhibit P/23) was witnessed by Achchhelal (PW.15) and Vishwanath Dubey (PW.16). Achchhelal (PW.15) admits that the seizure of Sickle and Shirt from possession of Banshilal Ahirwar was recovered from an open place and has no evindentiary value. He admits that the Police had obtained his signatures on 10-12 Papers. He had not read as to what was written on those Papers. He admits that he does not know anything about the seizure. Vishwanath Dubey (PW.16) admits as to what recovery was made from which of the accused is not known to him. The Police had obtained his signatures at 20 places. The Police had not read over the documents to him. Learned Senior Counsel for the appellants submits that the seizure of the Sickle itself becomes doubtful and has no evidentiary value.
30. Investigating Officer Satish Singh (PW.8) in Paragraph No.17 states that at the instance of Banshilal, Seizure Memo Exhibit P/23, was prepared and at the spot itself, the seized articles were sealed. Both the witnesses of seizure Achchhelal (PW.15) and Vishwanath Dubey (PW.16) have nowhere said that the articles, which were seized, were sealed in front of them. Thus, the onus was on the prosecution to demonstrate through the Seizure Witnesses Achchhelal (PW.15) and Vishwanath Dubey (PW.16) that the articles were seized and sealed in their presence but the prosecution has since failed to prove their sealing then it will have adverse impact on the case of the prosecution.
31. It is submitted by learned Senior Counsel for the appellants that the blood sample of Banshilal Ahirwar was drawn by Rajesh Khateek (PW.26) and Rajesh Khateek (PW.26) says that after identification by the doctor, he had taken samples of different accused persons, namely, Mangal Ahirwar, Poonabai Ahirwar, Brajesh Ahirwar & Banshilal Ahirwar. He had also taken sample of Ram Prasad Ahirwar. Dr.M.A.Qureshi (PW.11) had instructed him to take blood sample and on his instructions and identification, the blood samples were drawn. Dr.M.A.Qureshi (PW.11) admits in Paragraph No.28 of his cross-examination that it cannot be said with certainty as to whether the neck of the victim/deceased was severed using a Sickle, Sword or a Baka. Dr.R.S.Bhojak (PW.6) states that he had given the samples to Constable Dilip but Dilip was not examined before the Court of law. Learned Senior Counsel submits that there being no evidence as to where the samples were kept from 15.3.2019 to 20.3.2019 then the judgment of Manoj & Others versus State of Madhya Pradesh (supra) will have application to the facts and circumstances of the present case.
32. Learned Senior Counsel for the appellants relying on the judgment of the Apex Court in Satye Singh & Another versus State of Uttarakhand (2022) 5 SCC 438 submits that where no cogent evidence is collected by the prosecution then it cannot be said that the circumstances exist to complete the chain. Reliance is placed on the judgments of the Apex Court in Narendra Singh & Another versus State of Madhya Pradesh (2004) 10 SCC 699 and Baiju Kumar Soni & Another versus State of Jharkhand (2019) 7 SCC 773 to contend that in case of two possible views or where hypothesis have been included then the view which favours the accused should be taken and every other hypothesis should be excluded. The benefit of doubt or defective or illegal investigation or faulty investigation should accrue in favour of the accused. Reliance is placed on the judgments of the Apex Court in State of U.P. versus Wasif Haider & Others (2019) 2 SCC 303 and Vikramjit Singh @ Vicky versus State of Punjab (2006) 12 SCC 306 to contend that a strong suspicion, however, may be but it cannot take place to substitute a proof. Reliance is placed on the judgment of the Apex Court in Balwan Singh versus State of Chhattisgarh & Another (2019) 7 SCC 781 on the aspect of no bloodstain being found on the seized items like Sickle etc.
33. Learned Senior Counsel for the appellants submits that the age of the victim/deceased could not be disputed inasmuch as Headmaster Harprasad (PW.3) has given date of birth of the victim/deceased as 12.8.2008 on the basis of the Exhibit P/7, which is Attendance Register for 2018-2019 and the Admission Register, Serial No.42 Dakhil Kharij Register No.2542 showing the date of birth of the victim/deceased as 12.8.2008. Learned Trial Court erred in considering the age of the victim/deceased to be 11 years despite inconsistencies in the evidence of complainant/PW.1 (father of victim/deceased) and his wife/PW.2 (mother of victim/deceased) that there was no documentary evidence to substantiate the date of birth of the victim/deceased. Learned Senior Counsel submits that the circumstances, which have been used against Ram Prasad Ahirwar that he ran away and was absconding whereas he was also involved in search of the victim/deceased.
34. Reading Paragraph No.2 of the testimony of complainant/PW.1 (father of victim/deceased), it is submitted by learned Senior Counsel for the appellants that Mangal alongwith Vijay and Ram Prasad had gone in search of the victim/deceased to the Government School at Bhadrana. Thus, in view of the law laid down by the Apex Court in Criminal Trials Guidelines Regarding Inadequacy & Deficiencies, IN RE versus State of Andhra Pradesh & Others (supra) and Bhagwani versus State of Madhya Pradesh (2022) 13 SCC 365, learned Senior Counsel submits that since the circumstances do not complete the chain to point out the guilt of the appellants and also the five circumstances, which have been mentioned in Sharad Birdhi Chand Sarda versus State of Maharashtra (1984) 4 SCC 116 to prove a case of circumstantial evidence against the appellants then present is a fit case to record acquittal in favour of the appellants. In the alternative, it is submitted by learned Senior Counsel for the appellants that he would like to press for acquittal of Accused Banshilal Ahirwar as none of the circumstances point out towards his involvement and he would also pray for conversion of sentence of Accused Ram Prasad Ahirwar into one of Life Imprisonment in place of Death Penalty.
35. Learned Government Advocate for the State submits that as far as the age of the victim/deceased is concerned, the mother of victim/deceased PW.2, Harprasad (PW.3) and Ramakant Gautam (PW.9) have deposed the date of birth of the victim/deceased to be 12.8.2008 and that being so, there is no iota of doubt that the victim/deceased was less than 12 years of age. Harprasad (PW.3) says that the victim/deceased was a student of Class-VI. Once the guilt of appellants has been proved beyond reasonable doubt and, therefore, the finding of conviction and the order of sentence awarded by learned Trial Court be maintained. Learned Government Advocate submits that recovery of Shirt of Banshilal Ahirwar and the bloodstains found on it matching with the sample of the victim/deceased is a circumstance, which points out towards the guilt of Banshilal Ahirwar. This circumstance cannot be and should not be discarded lightly. Learned Government Advocate also submits that as far as Ram Prasad Ahirwar is concerned, he being the real brother of the victim/deceased, will be of no assistance because the DNA report qua Ram Prasad Ahirwar is positive. It indicates that Ram Prasad Ahirwar was also one of the violators of privacy of the victim/deceased. Learned Government Advocate further submits that the chain of circumstances is complete. Mere lapse on the part of the Investigating Officer to not to carry out investigation at the house of Banshilal Ahirwar where allegedly privacy of the victim/deceased was violated, will not defeat the prosecution case.
36. Learned Government Advocate for the State submits that the Scientific Officer, who had carried out DNA profiling etc, namely, Anil Kumar Singh was examined as PW.29 and no suggestion was given to him that either the sample was not intact nor any suggestion was given to the doctor, who had drawn the sample i.e.Dr.M.A.Qureshi (PW.11) that he had failed to draw, preserve & seal the sample properly so to leave a chance for contamination of sample but, however, Anil Kumar Singh (PW.29) found the seal to be intact and, therefore, the theory of contamination or deterioration of sample will be of no assistance to the appellants.
37. Learned Senior Counsel for the appellants, at this stage, submits that the death penalty is a rarest of rare punishment. The Courts are regularly required to balance between the mitigating and the aggravating circumstances either before confirming or not confirming the penalty of death awarded in such cases. The accused persons appear to be falsely implicated and Accused Banshilal Ahirwar is Uncle of victim/deceased and Ram Prasad Ahirwar is her real brother, therefore, the death sentence being an exception, should not be exercised in a routine manner. The death sentence may be imposed in rarest of rare cases and for inflicting death sentence, the Judge is required to assign special reason.
38. It is submitted by learned Senior Counsel for the appellants that since the death sentence is rarest of rare, therefore, it should not be awarded casually. Reliance is placed on the judgments of the Apex Court in Viran Gyanlal Rajput versus State of Maharashtra (2019) 2 SCC 311 and Accused ‘X’ versus State of Maharashtra (2019) 7 SCC 1 wherein it is held that pre-sentence hearing should be an effective hearing. To bolster his arguments, learned Senior Counsel places reliance on the judgments of the Apex Court in Bachan Singh versus State of Punjab (1980) 2 SCC 684 and Santa Singh versus State of Punjab (1976) 4 SCC 190.
39. We have heard learned counsel for the parties and gone through the record.
40. It is evident that the first issue raised with regard to the age of the victim/deceased.
41. Shri Manish Datt, learned Senior Counsel for the appellants has made a strenuous effort to point out that the victim/deceased was not below the age of 12 years.
42. We have gone through the evidence of the witnesses, who have been examined in this regard. The first witness is Complainant/PW.1, who is the father of victim/deceased. In cross-examination, PW.1 (father of victim/deceased) admits that the victim/deceased was born 4 years after the birth of Murat. He admits the age of Murat to be 15 years. In Paragraph No.9 of his examination-in-chief, he admits that he had gone to register the name of the victim/deceased in the School. He admits that he does not recollect as to in which year, the victim/deceased was born and when she was admitted in School and he had no knowledge about the age of the victim/deceased. The aforesaid admission is corroborated by PW.2 (mother of victim/deceased). Complainant/PW.1 (father of victim/deceased) though deposes that the victim/deceased was studying in Class-III but PW.2 (mother of victim/deceased) deposes that the victim/deceased was studying in Class-VI. She says that the age gap between Murat and victim/deceased is 2 years. However, she says the age of Murat to be 13 years, which is deposed by Complainant/PW.1 (father of victim/deceased) to be 15 years. Thus, when the age gap of 2 years is taken into consideration then it appears that the victim/deceased may be above 12 years of age.
43. The Headmaster of School Harprasad (PW.3) admits that the victim/deceased was a student of Class-VI. He admits that on Exhibit P/7, the date of birth of the victim/deceased is mentioned as 12.8.2008. However, Exhibit P/7 is the Attendance Register of the student and not Dakhil Kharij Register. Exhibit P/6 is the Seizure Memo of Attendance Register. Dakhil Kharij Register is not exhibited by Harprasad (PW.3). He admits that except for what is mentioned in the Register, he has no knowledge about the date of birth of the victim/deceased. He had not seen the Birth Certificate of the victim/deceased. He had not seen the horoscope of the victim/deceased.
44. Ramakant Gautam (PW.9) is Incharge Head Master of the School. He deposes that the victim/deceased had taken admission in the School on 7.7.2013 in Class-I. Her date of birth is mentioned as 12.8.2008 on Exhibit P/24. Exhibit P/24 is the Certificate issued by Ramakant Gautam (PW.9) on 19.3.2019 whereas Exhibit P/25/C is Admission & Discharge Register. He, however, admits in his cross-examination that he was not posted in the School at the time of admission of the victim/deceased. He admits that those, who have a certificate in support of date of birth, bring their certificate and those who do not have certificate, do not bring certificate and orally give the date of birth.
45. When all these aspects are cumulatively taken into consideration and in view of judgment of the Apex Court in Birad Mal Singhvi versus Anand Purohit (supra) wherein the ratio of law is that to make compliance of Section 35 of the Indian Evidence Act, 1872, the entries regarding date of birth contained in the Scholar’s Register and the Secondary School Examination have no probative value, if no persons on whose information, the date of birth of the candidate was mentioned in the School Record, is examined. The entry contained in Admission Form or in the Scholar’s Register must be shown to be made on the basis of information given by the parents or a person having knowledge about the date of birth of the person concerned.
46. When ratio of law laid down by the Apex Court in Birad Mal Singhvi versus Anand Purohit (supra) is culled out then it is evident that the Complainant/PW.1 (father of victim/deceased) admits that when he had gone to admit the victim/deceased to the School, he had no idea about her date of birth. He admits that he does not know the date of birth of the victim/deceased. He admits that the victim/deceased was younger to Murat and he had given the age of Murat to be 13 years and then deposes that the victim/deceased was 2 years younger to Murat whereas PW.2 (mother of victim/deceased) admits that the age of Murat was 15 years and then says that the victim/deceased was 4 years younger to him.
47. When all these aspects are taken into consideration then the Complainant/PW.1 (father of victim/deceased), who had admittedly assisted the victim/deceased in taking admission in School, is admitting that he does not know the age of the victim/deceased as mentioned above and as is evident from Paragraph No.9 of the testimony of the Complainant/PW.1 (father of victim/deceased) then the victim/deceased cannot be considered to be below the age of 12 years as has been considered by learned Trial Court and, therefore, we are persuaded to accept the first proposition put forth by learned Senior Counsel for the appellants that the age of the victim/deceased could not be proved beyond reasonable doubt to hold that she was less than 12 years of age.
48. The second proposition of fact which has been put forward by learned Senior Counsel for the appellants is with regard to the fact that since Accused Banshilal Ahirwar handled the dead body from the time of recovery till cremation and he was throughout present, that explains the bloodstains on the Shirt of Banshilal Ahirwar, which have been found to be matching with the blood group of the victim/deceased as per F.S.L.Report (Exhibit P/55). Though the alleles found on the vaginal slides Exhibit-G (C-3846) matched with the blood sample of Ram Prasad Ahirwar Exhibit-X (C-4851) and it was opined that the Autosomal STR DNA Profile obtained from the blood sample of Ram Prasad Ahirwar matches with the genetic markers found on the alleles of the vaginal slides and the Panty of the victim/deceased but the same was not found matching with the profile obtained from the blood sample of Banshilal Ahirwar vide Exhibit P/1 (C-3855). The first theory of Banshilal Ahirwar committing rape on his niece, does not find support from the F.S.L report. The report further says that the Shirt (Exhibit P/1) produced by Banshilal Ahirwar contains the DNA profile as was obtained from the Salwar (Stain-III) (Exhibit-H) of the Woman Autosomal STR DNA Profile of the victim/deceased.
49. Thus, it is evident that the Shirt of Banshilal Ahirwar contains DNA profile as was obtained from the Salwar (Stain-III) of the victim/deceased. However, the seizure of Clothes and Sickle from Banshilal Ahirwar is not supported by Achchhelal (PW.15) and Vishwanath Dubey (PW.16) inasmuch as Achchhelal (PW.15) has nowhere said that the articles, which were recovered on the basis of the Memorandum (Exhibit P/22) and as are mentioned in Seizure Memo (Exhibit P/23), were ever sealed in his presence.
50. Achchhelal (PW.15) in Paragraph No.3 of his examination-in-chief says that Banshilal Ahirwar had given an Iron Sickle with a Wooden Bat and his Pant & Shirt, which were soaked in blood, to the Police. The articles, which were sent for examination, vide Exhibit P/50, reveals that the Shirt, which was allegedly worn by Banshilal Ahirwar, was shown to have been sealed separately and marked as Exhibit-I and his Pant was shown to have been sealed separately and marked as Exhibit-J. The Sickle recovered from him was also shown to have been separately sealed and marked as Exhibit-K whereas in Exhibit P/23, there is no mention of such seizure of Pant, Shirt, Sickle separately in 3 packets. It is also not proved that the Shirt, which was sent for F.S.L examination, was the same article, which was recovered from him inasmuch as there is no mention of the colour of Cotton Shirt & Pant in Exhibit P/54 though in Seizure Memo (Exhibit P/23), it is mentioned that a Violet Colour Shirt with bloodstains and a Grey Colour Full Pant with bloodstains and clay were recovered from the possession of Banshilal Ahirwar. The absence of mentioning of these two vital facts viz. the colour and bloodstains and then also Pant of Banshilal Ahirwar was marked as C/3849 but there is no mention of Article-3849 as to why it was not put to test to corroborate the bloodstains, which were found.
51. Thus, we are persuaded to accept the aforesaid argument that since Banshilal Ahirwar was present throughout as is mentioned in the arguments of learned Senior Counsel for the appellants and as is evident from Exhibit P/12, Exhibit P/13, Exhibit P/14, Exhibit P/18 i.e. the Postmortem Report and handing over of the dead body to Banshilal Ahirwar after postmortem as is evident from Exhibit P/35, the presence of bloodstains on the Shirt of Banshilal Ahirwar cannot be said to be an unusual circumstance to implicate him and it also cannot be said to be a sufficient circumstance to convict him in the present offence.
52. Thus, there being a reasonable explanation for the presence of bloodstains of the victim/deceased on the Shirt of Banshilal Ahirwar merely on probabilities, conjectures & surmises and also looking to the fact that there is no F.S.L report with regard to the Sickle, which was recovered at the instance of Accused Banshilal Ahirwar and taking this fact into consideration that there is no eye-witness, the prosecution has failed to complete the chain of circumstances, the conviction of Appellant No.2 Banshilal Ahirwar calls for our indulgence and we are of the opinion that it needs to be set aside. The conviction of Appellant No.2 Banshilal Ahirwar for the offence under Sections 376(DB), 302, 201 of the I.P.C is hereby set aside. Appellant No.2 Banshilal Ahirwar is acquitted of the above charges. Appellant No.2 Banshilal Ahirwar be released forthwith, if not required in any other case.
53. Insofar as Appellant No.1 Ram Prasad Ahirwar is concerned, we are conscious of the fact that he is real brother of victim/deceased. However, Exhibit P/54 is the living testimony of his involvement inasmuch as Exhibit P/54 categorically speaks that the victim/deceased was biological child of Complainant/PW.1 and PW.2, that means the dead body of the victim/deceased was rightly identified to be child of the Complainant/PW.1 & PW.2. Exhibit P/54 also speaks that the liquid material recovered from the private part of the victim/deceased was used to generate DNA profile and it contains the same Autosomal STR DNA Profile as was obtained from that of Juveniles and Ram Prasad Ahirwar. The Profile obtained from the blood of Ram Prasad Ahirwar contains the same Autosomal STR DNA Profile as was obtained from the vaginal slides Exhibit-G and Panty Exhibit-H of the victim/deceased.
54. The Scientific Officer Anil Kumar Singh was examined in Court of law as PW.29. No suggestion was given to him that the samples, which were received by the Forensic Science Laboratory, were tampered or were not properly sealed or handled. Similarly, no suggestion was given to Dr.M.A.Qureshi (PW.11) that the samples were not properly preserved. Infact, there is no effective cross-examination either on Dr.M.A.Qureshi (PW.11) or on Dr.Anil Kumar Singh (PW.29). In Paragraph No.12, suggestion given to Dr.Anil Kumar Singh (PW.29) that the DNA of all members of a family is identical, has been denied and he categorically deposes that the DNA profile of only monozygotic twins, who are born out of the same egg and sperm, are identical otherwise the DNA profile is different from different semen sample though the chemical composition of DNA is similar. No suggestion was given to him that the seal was broken or the samples were spoiled on account of improper preservation.
55. Thus, the minor contradictions will be of no assistance to the appellants when the judgment of the Apex Court in Ranjitsing Bramhajeetsing Sharma versus State of Maharashtra & Another (2005) 5 SCC 294 and that of Gujarat High Court in Premjibhai Bachubhai Khasiya versus State of Gujarat & Another 2009 Cri.L.J 2888 are examined in terms of the facts and circumstances of the present case.
56. Learned Government Advocate for the State places reliance on the judgment of a Coordinate Bench of this Hon’ble High Court in Ramswarooop versus State of Madhya Pradesh (Criminal Appeal No.2630/2015) decided on 2.8.2023. The facts of the aforesaid case are different and the Coordinate Bench of this Hon’ble High Court in the aforesaid case has not considered the judgment of Birad Mal Singhvi versus Anand Purohit (supra).
57. After considering the rival submissions, we are of the considered opinion that the involvement of Appellant No.1 Ram Prasad Ahirwar is proved beyond reasonable doubt and, therefore, his conviction for the offence under Sections 363, 366, 376(DB), 302, 201 of the Indian Penal Code awarded by learned Additional Sessions Judge-Banda, District Sagar vide judgment dated 19.1.2021 in Special Sessions Case No.49/2020 is maintained. This leads to the most vital question as to whether there are sufficient circumstances to maintain the death penalty imposed by the Trial Court or that needs some indulgence.
58. Thus, coming to the issue of sentencing Appellant No.1 Ram Prasad Ahirwar, Section 354(3) of the Cr.P.C can be seen, which provides that when the conviction is 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 sentence.
59. Learned Trial Court has noted that the case is based on circumstantial evidence. Referring to the judgment of the Apex Court in Ravishankar @ Baba Vishwakarma versus State of Madhya Pradesh (2019) 9 SCC 689, it is noted by the learned Trial Court that where the conviction is based on circumstantial evidence, that itself cannot be a ground for not awarding death sentence. The victim owing to her tender age can put up no resistance. In such cases, it is extremely likely that there would be no ocular evidence. It cannot, therefore, be said that in every such case notwithstanding that the prosecution has proved the case beyond reasonable doubt, the Court must not award capital punishment for the mere reason that the offender has not been seen committing the crime by an eyewitness. Such a reasoning, if applied uniformly and mechanically, will have devastating effect on the society, which is a dominant stakeholder in the administration of our criminal justice system.
60. Learned Trial Court has discussed aggravating circumstances, to be the following, namely:- (1) Age of victim to be less than eleven years (2) Gang rape by the accused person (3) Brutal murder after committing gang rape (4) the accused being members of the family and being responsible for wellbeing of the victim (5) without there being any provocation committing the offence against a helpless and juvenile girl. The manner in which the offence is committed has caused erosion of trust of the society on the family system and misuse of trust for fulfillment of desire.
61. The mitigating circumstances have been considered as age of the accused to be twenty-five years, the matter being that of circumstantial evidence, the accused being responsible for taking care of their family, possibility of accused being rehabilitated in the society, freedom of human life and possibility of achieving those values of human life, no previous criminal history and this being their first offence and Appellant No.1 Ram Prasad Ahirwar during framing of charge accepting the offence and showing remorse for it.
62. Taking overall facts & circumstances of the case, learned Trial Court has held that in view of the law laid down by the Apex court in Ravishankar @ Baba Vishwakarma versus State of Madhya Pradesh (supra), the present matter does not project any aspect of residual doubt as complete case is established on the touchstone of the DNA report and there is chain of circumstances available, therefore, the matter being proved beyond reasonable doubt, the death penalty has been given in Dhananjoy Chatterjee @ Dhana versus State of West Bengal (1994) 2 SCC 220 where rape was committed with an animal instinct and thereafter the murder was committed on a helpless and the minor girl and the Apex Court upheld the death penalty.
63. In Laxman Naik versus State of Orissa (1994) 3 SCC 381 and State of U.P. versus Satish (2005) 3 SCC 114, in a case of Sections 302, 376 & 201 of the Indian Penal Code treating it to be a rarest of rare case, the Apex Court maintained the death penalty. In Paragraph Nos. 27 & 28 of Laxman Naik versus State of Orissa (supra), the Apex Court discussed two aspects, namely, Accused Laxman Naik was uncle of deceased and occupied the status & position that of a guardian whereas the victim was seven years of age. In State of U.P. versus Satish (supra), the age of the victim was six years. In Mohan Anna Chavan vs State Of Maharashtra (2008) 7 SCC 561, the age of the victim was five years. In Bantu versus State Of U.P (2008) 11 SCC 113, the age of the victim was six years. In Mohammad Mannan @ Abdul Mannan versus State of Bihar (2011) 5 SCC 317, the age of the victim was eight years. In Rajendra Pralhadrao Wasnik versus State of Maharashtra (2012) 4 SCC 37, the age of the victim was three years.
64. Taking into consideration all these facts & circumstances of the case, learned Trial Court has recorded a finding that since the age of the victim was less then eleven years, therefore, this being a rarest of rare case, Appellant No.1 Ram Prasad Ahirwar deserves death penalty.
65. The chronology of events of the present case reveals that the victim/deceased had left her home to attend her school. Appellant No.1 Ram Prasad Ahirwar is her real brother. Appellant No.2 Banshilal Ahirwar is her uncle. She did not reach school and also did not return back to home. On 14.3.2019, a missing person report was lodged by the father of the victim/deceased that he is a labourer at Village-Berkhedi. He has two daughters and three sons. The victim/deceased was a student of Class-VI. On 13.3.2019, she had gone to her school for giving paper. When she did not return till 12 Noon then his wife had enquired at school where School Master had informed her that she had not come to school to give paper. Thereafter, it has come on record that when Ganni (PW.18) had gone for harvesting of Grams Crops to the fields of Rambhagat Yadav then at about 5:00 PM, while returning back, he had seen a dead body of a girl in the fields of one Shankar Yadav. The body was devoid of head. This fact was narrated by him to Vikram Singh. On the basis of the said report, maternal uncle of the victim/deceased, namely, Jasrath (PW.14) had lodged Merg Intimation at Police Station vide Exhibit P/11. The head of the victim/deceased was recovered from the neighbouring fields of Ramsewak Yadav.
66. The DNA report Exhibit P/54 makes a mention that Article-Q semen slide of Juvenile, Article-R semen slide of Juvenile. Article-S semen slide of another Juvenile being not necessary, were not used for testing. However, it leaves a question-mark as to what was the need for collection of semen slide of the accused persons when DNA testing is permissible & possible with the blood sample of the accused persons. The DNA report also makes a mention that on opening of Article-H, a Salwar, a Panty, a Frock, a Kurti, a Sameej & one pair of slippers were found out of which the wired DNA profile was found in Salwar & Panty. The report further says that on the vaginal slide Exhibit-G (C/3846), Salwar (Stain-I & II), Panty Exhibit-H (C/3847) produced mixed male Autosomal STR DNA Profile.
67. Similarly, the liquid material recovered from the private part of the victim/deceased was marked as Exhibit-F (C/3845) from which Male Autosomal STR DNA Profile was recovered. Male Autosomal STR DNA Profile recovered from the blood sample of Juvenile Exhibit P/2 (C/3856) matched with the Male Autosomal STR DNA Profile recovered from the fluid Exhibit-F from the private part of the victim/deceased. Mixed Male Autosomal STR DNA Profile recovered from the vaginal slide & Panty of the victim/deceased matched with the blood sample of Juvenile and the blood sample of Ram Prasad Ahirwar. There is mention of stains recovered from the Salwar of the victim/deceased to be matching with the sample obtained from two Juveniles and Ram Prasad Ahirwar. From the vaginal slide, Salwar & Panty, the genetic markers obtained did not match with the profile from Banshilal Ahirwar’s sample (Exhibit P/1). Hence, Banshilal Ahirwar is cleared of commission of rape. It is only mentioned that on production of Shirt by Banshilal Ahirwar Exhibit-I, Autosomal STR DNA Profile, which was recovered from the Salwar (Stain-III) Exhibit-H of the victim/deceased contained similar DNA Marker i.e Shirt contained similar Female Autosomal STR DNA Profile as was obtained from the Salwar (Stain-III) of the victim/deceased.
68. Accused Ram Prasad Ahirwar is real brother of the victim/deceased. Thus, it is evident that there is breach of trust to which the victim/deceased was subjected to. The law has developed over a period of time. Prior to 1974, the view was that only for extenuating circumstances, life imprisonment could be imposed as death sentence is normal as can be noted from the judgment of the Apex Court in Rishideo Pande vs State Of Uttar Pradesh AIR 1955 SC 331. Now only for the special reasons, which are required to be stated, the death sentence is permissible.
69. In Balwant Singh versus State of Punjab AIR 1976 SC 230, the Apex Court has held that it is not possible to catalogue special reason, which must justify the passing of death sentence but just a few may be indicated, such as, crime has been committed by a professional or hardened criminal or it has been committed in a brutal manner or on a helpless child or woman or the like.
70. It is also settled law that full weightage is to be given to the aggravating & mitigating circumstances in striking the balance before exercising the option. The option has to be exercised bearing in mind that life imprisonment is the rule and death sentence to be only an exception, which can be resorted to only when life sentence is found altogether inadequate. The crime to receive death sentence must be of an uncommon nature in which even after giving maximum weightage to the mitigating circumstances, the Court must be of the opinion that the sentence of imprisonment for life is inadequate.
71. We have taken into consideration the law laid down by the Apex Court in Bachan Singh versus State of Punjab AIR 1980 SC 898 wherein it is held that the death sentence in murder case is permissible in rarest of rare case and only for special reasons. In ascertaining the existence or absence of “special reasons” in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating & mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because “style is the man”. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. In a sense, to kill is to be cruel and, therefore all murders are cruel. But such cruelty may vary in its degree of culpability and it is only when the culpability assumes the proportion of extreme depravity that “special reasons” can legitimately be said to exist.
72. In Machhi Singh & Others versus State of Punjab AIR 1983 SC 957, the Apex Court while adopting the guidelines indicated in Bachan Singh’s Case described the following propositions:-
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also requires to be taken into consideration alongwith the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
73. In Machhi Singh versus State of Punjab (supra), the Apex Court further observed that in order to apply aforesaid guidelines, following questions may be asked and answered:-
(a) Is there something uncommon about the crime, which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances, which speak in favour of the offender?
74. It is true and an admitted fact that Appellant No.1 Ram Prasad Ahirwar is not a professional killer. It is also an admitted fact that this was first offence for him. The prosecution has failed to prove the age of the victim/deceased to be less than twelve years. The accused persons belong to underprivileged section of the society i.e. they belong to Scheduled Caste Community. They come from a background of their parents being labourers. Thus, level of education and social exposure available to them can be gazed in terms of the social milieu of the caste dynamics and the rural urban divide existing in our society.
75. When the aforesaid facts & circumstances are taken into consideration then it is true that to kill is cruel but the age of Appellant No.1 Ram Prasad Ahirwar, his forthrightness to accept the guilt, are also required to be taken into consideration.
76. It has not come in the evidence as to in which order things unfolded i.e. whether juveniles had taken the victim/deceased to their uncle’s house where her privacy was violated and then Ram Prasad Ahirwar reached there & got involved in the act or it was other way round. This sequence would have thrown appropriate light as to the aggravating circumstances qua Appellant No.1 Ram Prasad Ahirwar. It is also not beyond doubt that why the Investigating Officer did not deem it fit to examine the place of offence where privacy of victim/deceased was allegedly violated, namely, the house of Banshilal Ahirwar where the victim/deceased was said to have been taken, in absence of Banshilal Ahirwar, her privacy was violated, she was eliminated with a view to eliminate complete set of evidence.
These are important missing links in the chain of events.
77. When the aforesaid facts & circumstances are cumulatively taken into consideration then it is apparent that commission of rape by three real brothers of the victim/deceased is sufficient indicator as to the mental depravity & perversity. Thereafter, brutal killing of the victim/deceased and also removal of her head is another circumstance, which takes the crime to the level of uncommonness. But when these aggravating circumstances are taken stock of in the balance sheet of aggravating & mitigating circumstances then taking into account the socio economic background, level of education, balances the mitigating circumstances with the aggravating circumstances and when a just balance is struck then we are of the considered opinion that instead of death penalty, a youth with remorse as is reflected from acceptance of his guilt at the time of framing of the charge, should be given a lease of life to reform and shape as a better citizen.
78. Accordingly, we set aside the death penalty taking clue from the judgment of the Apex Court in Ravishankar @ Baba Vishwakarma versus State of Madhya Pradesh (supra) where citing the decision of the Apex Court in Ashok Debbarma @ Achak Debbarma versus State of Tripura (2014) 4 SCC 747, the Apex Court drew a distinction between “residual doubt”, which is any remaining or lingering doubt about the defendant’s guilt, which might remain at the sentencing stage despite satisfaction of the “beyond a reasonable doubt” standard during conviction, and reasonable doubts, which as defined in Krishnan & Another versus State, Represented by Inspector of Police (2003) 7 SCC 56 are “actual and substantive” and not merely imaginary, trivial or merely possible”. Thus, “residual doubt” although not relevant for conviction to tilt towards mitigating circumstances to be taken note of whilst considering whether the case falls under “rarest of rare category”. In Paragraph No.59, the Apex Court noted as under:-
“59. This theory is also recognized in other jurisdictions like the United States, where some State courts like the Supreme Court of Tennessee in State versus McKinney [74 SW 3d 291 (Tenn 2002)] have explained that residual doubt of guilt is a valid non-statutory mitigating circumstance during the sentencing stage and have allowed for new evidence during sentencing proceedings related to defendant's character, background history, physical condition, etc.”
79. We are of the considered opinion that the present case falls short of “rarest of rare case” where death sentence alone deserves to be awarded to the appellants.
80. For the reasons aforesaid, the conviction of Appellant No.1 Ram Prasad Ahirwar for the offence under Sections 363, 366, 201 of the I.P.C is maintained and he shall undergo the jail sentence as awarded by the Trial Court vide its impugned judgment dated 19.1.2021 in Special Sessions Case No.49/2020. The conviction of Appellant No.1 Ram Prasad Ahirwar is altered from Section 376(DB) to Section 376(3) of the I.P.C and he is directed to suffer imprisonment for twenty-five years without any remission or parole in place of death penalty and fine of Rs.1,000/- with default stipulation of six months of rigorous imprisonment. The conviction of Appellant No.1 Ram Prasad Ahirwar for the offence under Section 302 of the I.P.C is maintained but his jail sentence is modified from death penalty to imprisonment for life and fine of Rs.1,000/- with default stipulation of six months of rigorous imprisonment.
81. Let appropriate supersession warrant be prepared by the Registry of this High Court for Appellant No.1 Ram Prasad Ahirwar and be sent to the Jail Authorities immediately.
82. Criminal Reference No.1/2021 is answered in above terms.
83. Criminal Appeal No.885/2021 as regards Appellant No.1 Ram Prasad Ahirwar is allowed in part in above terms.
84. Criminal Appeal No.885/2021 as regards Appellant No.2 Banshilal Ahirwar is allowed in above terms.
85. Record be sent back forthwith.
86. Let copy of this judgment be placed in the file of Criminal Appeal No.885/2021.
