Karandeep Sharma @ Razia @ Raju vs The State Of Uttarakhand

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 630-631 OF 2018

KARANDEEP SHARMA @ RAZIA @ RAJU ….APPELLANT(S)

VERSUS

STATE OF UTTARAKHAND ….RESPONDENT(S)

JUDGMENT

Mehta, J.

1. Heard.

2. The accused-appellant1 was tried by the Fast

Track Court/Additional Sessions Judge/Special

POCSO Judge, Rudrapur, Udham Singh Nagar2 in

Special Sessions Trial No. 159 of 2016 for the offences

Signature Not Verified Digitally signed by NEETU KHAJURIA Date: 2025.04.05 1 Hereinafter. Referred to as the ‘appellant’. 11:06:01 IST Reason: 2 Hereinafter, referred to as the ‘trial Court’.

1 punishable under Sections 376A, 302, 366, 363 and

201 of the Indian Penal Code, 18603 and Sections 5/6

of the Protection of Children from Sexual Offences Act,

20124. Vide judgment dated 5th April, 2017 and 6th

April, 2017, he was convicted and sentenced in the

terms below:

Section Sentence 376A IPC Death Sentence 302 IPC Death Sentence 366 IPC 10 years Rigorous Imprisonment along with fine of Rs. 10,000/-

and in default, to undergo Simple Imprisonment for 3 months.

363 IPC 3 years Rigorous Imprisonment along with fine of Rs. 10,000/-

and in default, to undergo Simple Imprisonment for 3 months.

201 IPC 3 years Rigorous Imprisonment along with fine of Rs. 10,000/-

and in default, to undergo Simple Imprisonment for 3 months.

3 Hereinafter, referred to as the ‘IPC’. 4 Hereinafter, referred to as the ‘POCSO Act’.

2 Criminal Appeal No. 630-631 of 2018

3. The trial Court forwarded a reference5 under

Section 366 of the Code of Criminal Procedure, 19736 to

the High Court of Uttarakhand at Nainital7, for

confirmation of the death sentence. The appellant also

preferred an appeal8 assailing his conviction. The High

Court vide judgment dated 5th January, 2018 dismissed

the appeal preferred by the appellant and answered the

reference in the affirmative thereby confirming the

penalty of death sentence awarded to the appellant by

the trial Court. The said judgment of the High Court is

the subject matter of challenge in these appeals by

special leave at the instance of the accused-appellant.

5 Criminal Reference No. 1 of 2017.

6 Hereinafter, referred to as the ‘CrPC’. 7 Hereinafter, referred to as the ‘High Court’. 8 Criminal Appeal No. 156 of 2017.

3 Criminal Appeal No. 630-631 of 2018

4. The case of the prosecution as unfurling from the

record is that the child-victim, i.e., Ms. A9 went missing

from a Jagran function which was organized in the

village Fasiyapura on the intervening night of 25th/26th

June, 2016. The father of the victim(PW-1)10 lodged an

FIR11 to the effect that his daughter had gone missing

from the Jagran function and all their efforts to trace

out the girl proved futile. While he was continuing the

search operations, someone told him that the body of a

girl child was lying in a nearby field. On this, the

complainant(PW-1) along with his family members

rushed to the location and identified the dead body to

be that of his daughter (child-victim). The

complainant(PW-1) suspected that the child-victim had

9 Hereinafter, referred to as the ‘child-victim’. 10 Hereinafter, referred to as the ‘complainant(PW-1)’. 11 FIR No. 236 of 2016 (Exhibit Ka-1). 4 Criminal Appeal No. 630-631 of 2018 been subjected to forcible sexual assault before being

killed. On receiving the FIR, Om Prakash Sharma,

Investigating Officer(PW-14) commenced investigation.

Spot documents were prepared, and an inquest was

carried out on the child-victim’s dead body. Statements

of witnesses were recorded. The body of the child-victim

was sent for post-mortem examination. Dr. Madan

Mohan, medical officer(PW-7) conducted autopsy upon

the dead body and issued the post-mortem report12,

taking note of multiple injuries on the private parts and

the head of the child-victim. He opined that the cause

of death of the child-victim was asphyxia. Statements of

the material witnesses were recorded. The appellant

was apprehended on 28th June, 2016. It is alleged that

the Investigating Officer(PW-14) got the confession13 of

12 Exhibit Ka-2.

13 Exhibit Ka-11.

5 Criminal Appeal No. 630-631 of 2018 the appellant recorded through the Magistrate

concerned. After concluding the investigation, a charge-

sheet14 came to be filed against the appellant and he

was subjected to trial. Upon completion of trial, the

appellant was convicted and sentenced as mentioned

above.

5. The appeal filed by the appellant against his

conviction also stands rejected and the death sentence

awarded to the appellant by the trial Court has been

confirmed by the High Court vide judgment dated 5th

January, 2018. Hence, the present appeals by special

leave.

6. Learned counsel representing the appellant urged

that the entire prosecution case is based on

14 Exhibit Ka-17.

6 Criminal Appeal No. 630-631 of 2018 circumstantial evidence which is purely conjectural and

untrustworthy. There is no tangible evidence on record

to connect the appellant with the crime. The evidence of

the witnesses of last seen circumstance, i.e., PW-2, PW-

3, PW-5, PW-6, PW-8 and PW-11 is totally unreliable.

Further, the DNA report cannot be read in evidence

because the expert who conducted the DNA

examination was not examined by the prosecution at

the trial.

7. Learned counsel further submitted that the

confession of the appellant was extracted under threat,

duress and coercion and that is why neither the trial

Court nor the High Court relied upon the same.

8. On these grounds, learned counsel for the

appellant implored the Court to accept the appeals, set

7 Criminal Appeal No. 630-631 of 2018 aside the conviction of the appellant, and acquit him of

the charges levelled against him.

9. Per contra, learned standing counsel appearing for

the respondent-State vehemently and fervently opposed

the submissions advanced by the learned counsel for

the appellant. He urged that the material prosecution

witnesses, i.e., PW-2, PW-3, PW-5, PW-6, PW-8 and PW-

11, have given unimpeachable testimony alleging that

the child-victim was last seen in the company of the

appellant on the night of the incident whereafter she

was not seen alive.

10. Learned counsel further urged that the DNA

expert’s report (Exhibit Ka-8) conclusively established

that the DNA obtained from the t-Shirt of the appellant

matched with the DNA obtained from the blood sample

of the child-victim. Likewise, the DNA obtained from the

8 Criminal Appeal No. 630-631 of 2018 hair of the suspect, vaginal smear of the child-victim

and her clothes were found to be matching with the

DNA obtained from the blood sample of the child-victim

and the blood sample of the appellant. Learned counsel

thus, submitted that the evidence of the witnesses of

the last seen circumstance coupled with the DNA/FSL

report is sufficient to bring home the guilt of the

appellant. On these grounds, learned counsel for the

respondent-State sought dismissal of the appeals.

11. We have given our thoughtful consideration to the

submissions advanced at the Bar and have gone

through the impugned judgments and minutely

reappraised the evidence available on record.

12. There is no dispute that the case of the

prosecution rests totally on circumstantial evidence in

the form of ‘last seen’, ‘recoveries’, ‘confession of the

9 Criminal Appeal No. 630-631 of 2018 appellant’ and the ‘DNA/FSL report’. We may note that

the confession of the appellant was exhibited in

prosecution evidence but the same was not relied upon

by the trial Court or the High Court and thus, the same

need to be taken into consideration while appreciating

the evidence available on record. Otherwise also, we

find that the confession seems to have been extracted

under duress and cannot be termed voluntary. The

prosecution is, thus, left with the testimony of the

witnesses of the last seen theory and the DNA/FSL

report in its endeavour to bring home the guilt of the

appellant.

13. Before we proceed to discuss the evidence of the

prosecution witnesses, we may note that the present

case is yet another classic example of undue haste

10 Criminal Appeal No. 630-631 of 2018 resulting in denial of proper opportunity to the accused

to be tried in a just and fair manner.

14. The sequence of events narrated below is sufficient

to draw this inference.

15. The incident took place on the intervening night of

25th/26th June, 2016. The charge-sheet came to be filed

on 24th September, 2016 and the trial Court took

cognizance of the same on the very same day. The

matter was deferred to 26th September, 2016 for

providing copies of the documents submitted under

Section 173(2) CrPC to the appellant, as per the

mandate of Section 207 CrPC. The matter was then

deferred to 5th October, 2016 for the very same purpose.

The order sheets of 5th October, 2016, 13th October,

2016, 17th October, 2016, 19th October, 2016 and 1st

November, 2016, all indicate that the matter was

11 Criminal Appeal No. 630-631 of 2018 deferred for providing the copies of the relied upon

documents to the accused (appellant herein). It was

only on 5th November, 2016 that the trial Court noted

that the appellant had been presented from custody and

the documents included in the chargesheet as relied

upon by the prosecution were being provided to him. It

must be emphasized that till this date the appellant was

neither represented by a privately engaged defence

counsel nor did the trial Court offer him the services of

a legal aid counsel. On 5th November, 2016 itself, the

trial Court proceeded to frame charges against the

appellant even though he had been provided with the

copies of the relied upon documents on that very day.

Apparently thus, proper opportunity was not given to

the appellant before framing charges against him and

sending him for trial. Not only this, the trial Court

12 Criminal Appeal No. 630-631 of 2018 extensively referred to the confession of the appellant

recorded under Section 164 CrPC while framing charges

against him. It is a different matter that the said

confession was not relied upon either by the trial Court

or the High Court, as a reliable piece of evidence against

the appellant. On none of the dates fixed by the trial

Court right up to the framing of charges and

summoning of the witnesses did the Court make any

endeavour to provide legal aid counsel to the appellant

despite noting the fact that he remained unrepresented

throughout the said proceedings.

16. Further, the Forensic Science Laboratory15 report

was presented by the Investigating Officer(PW-14) on 1st

and 3rd December, 2016 and the trial Court took it on

record. However, the order sheets of the trial Court are

15 Hereinafter, referred to as the ‘FSL’.

13 Criminal Appeal No. 630-631 of 2018 totally silent on the aspect of whether the copy of the

said FSL report was ever provided to the appellant. For

the first time on 11th January, 2017, on the request

being made by the appellant, one Shri S.P. Singh,

Advocate, was appointed as an amicus curiae to

represent him in the trial. It is pertinent to note that the

recording of the evidence of prosecution witnesses

began on the very same day, i.e., 11th January, 2017,

and the process was concluded within 27 days, i.e., on

6th February, 2017. During this short period, the amicus

curiae appointed to defend the appellant was changed

on 31st January, 2017. In view of the above sequence of

events, there is no possibility that the defense counsel

could have had a reasonable opportunity to prepare the

matter and conduct the cross-examination from the

witnesses. Thus, it is established beyond the pale of

14 Criminal Appeal No. 630-631 of 2018 doubt that the trial was not conducted in a fair manner

and that the appellant was not provided with a

reasonable opportunity to defend himself.

17. Be that as it may, now we shall proceed to discuss

the evidence of the prosecution witnesses who testified

in the trial.

18. Brajpal Singh(PW-1), being the father of the child-

victim gave evidence stating that his daughter (child-

victim) went missing from a Jagran function. The dead

body of the child-victim was recovered from a nearby

field, whereby, he lodged the FIR16 at the Police Station

Kashipur. This report came to be filed around 10:00 AM

on 26th June, 2016. However, what is most significant

to note is that, although the witnesses of last seen

16 Supra note 11.

15 Criminal Appeal No. 630-631 of 2018 circumstance claim in their depositions that they were

present at the crime scene when the dead body of the

child-victim was found, and police had arrived.

Surprisingly, the FIR gives no indication whatsoever

that anyone had seen the child-victim in the company

of the appellant, who operated the sound and light at

the Jagran function. The witnesses of the last seen

theory claim to be present at the spot where the dead

body was found but none of them divulged to the police

officials who reached the spot that he/she had seen the

child-victim and the accused-appellant moving

together.

19. Jasweer Singh(PW-2) stated that he had come to

the village Dhakiya Gulabo to meet his relatives. He also

went to the Jagran function. The incident took place on

the night of 25th June, 2016. In the morning of 26th

16 Criminal Appeal No. 630-631 of 2018 June, 2016, at about 6:15 AM-6:30 AM, he came to

know that the dead body of a girl child was lying in the

nearby field. Out of curiosity, he also went there. He

claimed that the dead body which he saw was of the

same girl, whom he had seen in the night time

accompanying a person who was doing the work of

sound and light in the Jagran function and was being

addressed by the name Rajiya @ Raju, by other people.

The witness stated that he had seen the child-victim

going with the said person in the middle of the night. In

cross-examination, the witness admitted that he did not

know the appellant prior to the date of the incident.

20. What is important to note here is that the

witness(PW-2) was not made to identify the appellant in

the dock as being the person with whom the child-

victim was seen going away.

17 Criminal Appeal No. 630-631 of 2018

21. Anand Pal Singh(PW-3) also testified almost on the

same lines as Jasweer Singh(PW-2). This witness too

did not identify the appellant in the dock as being the

suspect with whom the child-victim was seen going

away. However, both Jasweer Singh(PW-2) and Anand

Pal Singh(PW-3) stated that the appellant was wearing

spectacles.

22. Sheespal(PW-4) was a formal witness who gave

evidence regarding the inquest proceedings and

preparation of the inquest memo.

23. Smt. Rashmi Devi(PW-5) also gave evidence of last

seen circumstance. She alleged that in the night at

about 3 o’clock, she saw the person who was doing the

task of sound and light at the Jagran function, talking

to the child-victim. Thereafter, both of them were seen

going towards Dhakiya Gulabo road. This witness also

18 Criminal Appeal No. 630-631 of 2018 was not made to identify the appellant in the dock as

being the person who was seen going away with the

victim. She admitted in her cross-examination that she

had never seen the appellant before the incident and

that she identified him with the help of a photograph

which was published in the newspaper. The

witness(PW-5) further admitted that her statement was

recorded by the police on the same day on which she

saw the photograph in the newspaper. The fact that the

photograph of the appellant was published in a

newspaper and that this witness of last seen theory got

wise about the identity of the assailant thereafter,

makes her testimony suspect.

24. Munesh Singh(PW-6) is another witness of last

seen circumstance. The testimony of this witness is also

on the same lines as that of PW-2, PW-3, and PW-5.

19 Criminal Appeal No. 630-631 of 2018 This witness also was not made to identify the appellant

in the dock as being the suspect with whom the child-

victim was seen going away.

25. Dr. Madan Mohan, medical officer(PW-7)

conducted the post-mortem examination on the body of

the child-victim. He opined that the child-victim had

been subjected to forcible sexual assault and that she

may have died as a result of asphyxia because of

pressure applied during the act of sexual assault. He

also conducted the medical examination of the

appellant and collected samples of the appellant for

serological and DNA examination. The medical officer

made a vague assertion in his evidence that all the

samples which he had collected were handed over to the

policeman who had brought the appellant to the

hospital. However, he neither disclosed the name of the

20 Criminal Appeal No. 630-631 of 2018 policeman to whom the samples were handed over nor

did he state that the samples were sealed and were

handed over to the policeman in a secure condition. The

witness did not refer to any document or receipt under

which the samples were handed over to the policeman.

26. Brajesh Kumar(PW-8) deposed that the Jagran

function was being conducted by his group i.e., the

Ridhi-Sidhi Jagran Mandali and that the appellant was

taking care of the sound and light arrangements. The

appellant had worked with his group, on earlier

occasions as well. The witness further claimed that after

completing his task, the appellant was sitting near the

place where the artists were changing their clothes.

Sometime later, the appellant brought two small girls to

the artists and suggested that they should be dressed

up as Matas (Deities) but the artists refused, on which

21 Criminal Appeal No. 630-631 of 2018 the appellant went away with the girls. On the next

morning, the parents of one of the girls approached the

group and complained that their daughter had not

reached home whereafter, the witness(PW-8) also

participated in the search proceedings. In cross-

examination, the witness candidly admitted that he did

not see the appellant taking away the child-victim with

himself.

27. Saroj Kamboj(PW-9) was posted as the Sub-

Inspector, Mahila Helpline, Kashipur. She took formal

steps pertaining to the investigation. She handed over

the dead body of the child-victim to Constable Neelam

Kanta(PW-10) and Constable Naveen Sharma for the

post-mortem examination. The witness also moved an

application to the medical officer(PW-7) for conducting

post-mortem examination and preserving the forensic

22 Criminal Appeal No. 630-631 of 2018 samples for analysis. However, the prosecution did not

take the trouble of proving this application in the

testimony of PW-9. Nothing turns on the testimony of

this witness so far as the charges against the appellant

are concerned.

28. Neelam Kanta(PW-10) was a Lady Constable

posted at CCR Kashipur. She also gave formal evidence

in respect of the inquest proceedings on the dead body

of the child-victim, etc. In her evidence, there is nothing

material which may connect the appellant with the

crime.

29. Shiva Asthana(PW-11) claimed that he was the

operator of the Ridhi-Sidhi Jagran Mandali and that the

appellant used to do the work of sound and light for the

group. The Jagran Mandali conducted a programme at

the Fasiyapura T-Cross on 25th June, 2016. On that

23 Criminal Appeal No. 630-631 of 2018 day, the appellant had accompanied them for doing the

job of light and sound. After his work was finished, the

appellant was sitting near the place where artists were

changing their clothes. At about 2:30 AM in the night,

two small girls were playing there whom the appellant

took to the artists and suggested that they should be

dressed up as Matas (Deities). The artists refused on

which the appellant went away with the girls. When the

witness was offered for cross-examination, the legal aid

counsel provided to the appellant refused to continue

with the case upon which another Advocate, namely

Shri Neeraj Ranjan, was asked to represent the accused

(appellant herein). The said counsel was not given any

time to prepare the brief and was compelled to conduct

the cross-examination on the same day. On a question

being put to the witness(PW-11) in cross-examination,

24 Criminal Appeal No. 630-631 of 2018 he answered that he did not see the appellant taking

away the child-victim and that some persons who were

doing the background decoration had given him this

information. Clearly thus, the testimony of this witness

on the aspect of identification of the accused-appellant

is wavering and does not inspire confidence.

30. Prahlad Singh(PW-12) was posted as Sub-

Inspector at Police Station Transit Camp. He

accompanied the Investigating Officer(PW-14) to the

crime scene on receiving information about the

incident. He arrested the appellant who was seen

standing near a Petrol Pump. The witness also stated

that when the appellant was arrested, he observed

numerous stains of blood and semen, etc. on his t-shirt.

The clothes of the appellant were seized and sealed.

However, the witness remained totally silent regarding

25 Criminal Appeal No. 630-631 of 2018 the fate of these articles after the same were allegedly

seized and sealed.

31. Anuj Tyagi(PW-13) was posted as a Constable at

Police Station Kashipur. He gave evidence regarding the

transmission of the forensic samples/articles related to

the case in compliance of the directions given by the

trial Court. The witness stated that he deposited the

articles at the FSL on 29th June, 2016. However, he was

totally silent regarding the mode and manner in which

he received the sample packets. He also did not utter a

word regarding the date of receipt and date of deposit of

the samples.

32. Om Prakash Sharma, Inspector of Police(PW-14)17

conducted the investigation of the case. He carried out

17 Hereinafter referred to as the “Investigating Officer(PW-14)”.

26 Criminal Appeal No. 630-631 of 2018 the inquest proceedings; prepared the site inspection

plan and collected the forensic samples/articles from

the place of the incident. The witness stated that during

the investigation, on 27th June, 2016, the secret

informers told him that rumors were rife amongst the

villagers that the crime had been perpetrated by the

appellant, and he had been seen by several persons,

taking away the child-victim. Evidence of this witness

completely impeaches the credibility of the witnesses of

the last seen theory and creates a grave doubt whether

they had actually seen the appellant taking away the

child-victim from the crime scene.

33. The incident took place on the intervening night of

25th/26th June, 2016. The witnesses of the last seen

theory, i.e., Jasweer Singh (PW-2), Anand Pal Singh

(PW-3), Smt. Rashmi Devi (PW-5), Munesh Singh (PW-

27 Criminal Appeal No. 630-631 of 2018

6), Brajesh Kumar(PW-8) and Shiva Asthana(PW-11)

categorically stated that they saw the appellant who was

doing the job of sound and light in the Jagran function,

taking away the child-victim with him. If at all, there

was an iota of truth in this version of the witnesses of

last seen theory, then there was no reason as to why

they kept silent and failed to give this vital information

to the police officers who arrived at the spot to

investigate the matter in the early morning hours of 26th

June, 2016. Manifestly, going by the evidence of the

Investigating Officer(PW-14), no witness came forward

with this theory till 27th June, 2016.

34. Furthermore, the witnesses of the last seen theory

testified that they were already present at the site where

the dead body of the child-victim was found, and police

had also reached there in the early hours of 26th June,

28 Criminal Appeal No. 630-631 of 2018 2016. The FIR in respect of the incident came to be

registered around 10:00 AM and the said FIR does not

contain a whisper that anyone from the village had seen

the child-victim in the company of the appellant, any

time prior to her dead body being found.

35. Hence, in our considered opinion, the conduct of

these witnesses in remaining silent and not disclosing

to the police regarding they having seen the appellant

taking away the child-victim with himself, completely

demolishes the prosecution case regarding the theory of

last seen.

36. We may also observe that indisputably, the

appellant was not known to PW-2, PW-3, PW-5, and

PW-6 from before. However, no test identification

parade proceedings were conducted by the Investigating

Officer(PW-14), to ascertain the identity of the appellant

29 Criminal Appeal No. 630-631 of 2018 as being the suspect, who took away the child-victim

with himself.

37. Further doubt is created on the bona fides of the

Investigating Officer(PW-14) who had tried to stick the

case on to the appellant by getting his confessional

statement recorded but neither the trial Court nor the

High Court placed reliance on the said confessional

statement and hence, we need not delve upon the same

because these concurrent findings recorded by both the

Courts remain unchallenged and have attained finality.

38. The circumstance of the ‘last seen’ having been

disbelieved and ‘confessional statement’ having been

discarded, the only other circumstance which remains

in the hands of the prosecution to connect the appellant

with the crime as relied upon by the trial Court and the

High Court are the DNA/FSL reports. The DNA/FSL

30 Criminal Appeal No. 630-631 of 2018 reports were proved by Om Prakash Sharma,

Investigating Officer(PW-14). The conclusions drawn in

the DNA report18 are as follows: -

• The DNA obtained from the Exhibit-15 (t-

shirt of accused) is from a single female

human source and matching with the DNA

obtained from the Exhibit-1 (blood sample of

the deceased).

• The DNA obtained from the Exhibits-2, 3, 4

and 6 (hair of suspected, vaginal smear slide

of deceased, paizami of deceased and

underwear of deceased) are matching with

the DNA obtained from the Exhibits-1 and 10

(blood sample of deceased and blood sample

of accused).

18 Exhibit Ka-19.

31 Criminal Appeal No. 630-631 of 2018

39. The first flaw in the prosecution case on the aspect

of DNA profiling is that the expert who conducted the

DNA examination was not examined in evidence and the

DNA report was merely exhibited in evidence by the

Investigating Officer(PW-14) who undeniably is not

connected with the report in any manner. This Court in

the case of Rahul v. State of Delhi, Ministry of Home

Affairs & Anr.19, while dealing with the issue

concerning evidentiary value of DNA report, has held

that DNA profiling reports cannot be admitted in

evidence ipso facto by virtue of Section 293 CrPC and it

is necessary for the prosecution to prove that the

techniques of DNA profiling were reliably applied by the

expert. The relevant excerpts from the said judgment

19 (2023) 1 SCC 83.

32 Criminal Appeal No. 630-631 of 2018 are reproduced hereinbelow for the sake of ready

reference: -

“36. The learned Amicus Curiae has also assailed the forensic evidence i.e. the report regarding the DNA profiling dated 18-4-2012 (Ext. P-23/1), giving incriminating findings. She vehemently submitted that apart from the fact that the collection of the samples sent for examination itself was very doubtful, the said forensic evidence was neither scientifically nor legally proved and could not have been used as a circumstance against the appellant- accused. The Court finds substance in the said submissions made by the Amicus Curiae. The DNA evidence is in the nature of opinion evidence as envisaged under Section 45 and like any other opinion evidence, its probative value varies from case to case.

38. It is true that PW 23 Dr B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ext. PW 23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the investigating officer on 14-2-2012 and 16-2-2012;

and they were sent to CFSL for examination on 27- 2-2012. During this period, they remained in the malkhana of the police station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the trial court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were

33 Criminal Appeal No. 630-631 of 2018 reliably applied by the expert. In the absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion.”

(emphasis supplied)

40. Thus, in the facts and circumstances of the

present case, non-examination of the scientific expert

who carried out the DNA profiling is fatal, and the DNA

report cannot be admitted in evidence. That apart, we

find that the very procedure of collection and forwarding

of DNA samples to the FSL is full of lacunae and

loopholes. The incident took place on the intervening

night of 25th/26th June, 2016. The dead body of the

child-victim was picked from the crime scene by the

Investigating Officer(PW-14) on 26th June, 2016 at

06:16 AM and was forwarded to Dr. Madan Mohan,

medical officer(PW-7) for carrying out the post-mortem

examination. The medical officer, while deposing on

34 Criminal Appeal No. 630-631 of 2018 oath, stated that he collected following samples and

articles from the child-victim’s dead body for forensic

examination. The relevant excerpt from his testimony is

reproduced below: -

“The following tests were sent from the injuries of the deceased in her vagina.

No. 1: Extract was collected from the vagina and four slides were prepared for spectro majoa and smegma bacilli test and were sent to laboratory. 5 ml. blood was taken from the body of the deceased and sent for DNA test.

The hair stuck on the vagina of the deceased and blood accumulated outside the vagina were also sent for DNA test. The following clothes of the deceased were sent in a sealed bundle for semen and blood test.

Clothing of the deceased: no.1. readymade blue under wear stained with blood and mud. Printed Salwar of the deceased of white and green colour, stained with blood. One small towel with yellow linings, one bracelet, number 5th:- Mud-stained shirt of the deceased. The chip of the videography of all above samples of the deceased and of post mortem examination was sealed and handed over to the accompanied constables.”

41. The medical officer(PW-7) also testified that on 28th

June, 2016 at about 12:44 PM, a Constable named

35 Criminal Appeal No. 630-631 of 2018 Girish Kandpal brought the accused-appellant to the

hospital for medical examination. The medical officer

stated he collected the following samples from the

appellant for forensic examination: -

“On 28.6.2016 at 12.44 PM in the noon, Constable Girish Kandpal, P.S. Kashipur brought the accused. In general examination the accused was found healthy. On examination of sexual organs of the accused, dense hair were found. Skin over the glans of the penis of the accused was being folded easily. The glans was neat and clean. There was no blood mark but there were light mark of abrasion around the glans in the circle. I have taken following samples:

(1) Two slides were made from the swab of the glans for DNA test.

(2) Blood of the accused was taken for DNA test. (3) Samples of hair from the stomach and outside of testicles were taken for DNA test. (4) Two slides were made from the swab taken from the glans of accused for examination of spermatozoa and smegma vacilli.”

42. The medical officer(PW-7) also stated that the

samples of the deceased as well as the appellant were

handed over to the police officials who came to the

hospital at contemporaneous points of time. However,

36 Criminal Appeal No. 630-631 of 2018 there is not even a whisper in the statement of the

medical officer(PW-7) that the samples collected from

the appellant were sealed prior to being handed over to

the police officials. Hence, at the very inception, the

procedure of collecting the samples has been tainted on

account of non-sealing of the forensic material collected

from the accused-appellant.

43. Now, we shall discuss the evidence of the police

officials who dealt with the samples/articles which were

forwarded to the FSL/DNA laboratory.

44. Saroj Kamboj(PW-9), Sub-Inspector, stated that

she gave an application20 to the medical officer(PW-7) at

the L.D. Bhatt Government hospital for conducting the

post-mortem examination on the dead body of the child-

20 Exhibit Ka-9.

37 Criminal Appeal No. 630-631 of 2018 victim; to preserve the hair found on the reproductive

organs of the deceased; to make slides of vaginal smear

and to collect 5 ml blood for DNA test. However, Saroj

Kamboj(PW-9) did not give any follow-up evidence

regarding the fate of the samples, if any, prepared or

collected from the hospital. Thus, her evidence is

relevant only to the extent of submission of the

aforesaid application. If we consider her evidence in the

backdrop of the evidence of the medical officer(PW-7),

we find that he did not utter a single word regarding any

application having been submitted to him by any police

official for collecting these samples/articles.

45. Neelam Kanta(PW-10), lady Constable, stated that

she and Constable Naveen Sharma took the body of the

child-victim to the hospital for the purpose of post-

mortem examination. The Constable is completely silent

38 Criminal Appeal No. 630-631 of 2018 regarding any samples having been handed over to her

by the medical officer(PW-7). Rather, she gave a very

surprising statement claiming that the Investigating

Officer(PW-14) handed over the dead body to her and

the male Constable for post-mortem examination, after

duly sealing the same. We fail to understand as to why

the dead body of the child-victim was sealed for the

purpose of conducting the post-mortem examination. In

sheer contrast, the medical officer(PW-7) did not utter a

word in his deposition that when he received the dead

body at the hospital, the same was sealed. Hence, there

is a grave contradiction in the evidence of the

prosecution witnesses on this vital aspect of the case.

46. Prahlad Singh(PW-12), Sub-Inspector, stated that

he, along with the other members of the police team,

launched a search for the appellant, who was arrested

39 Criminal Appeal No. 630-631 of 2018 on 28th June, 2016 while standing near a petrol pump.

After being arrested, the appellant confessed to the

crime and also stated that the clothes which he was

wearing at the time of commission of the offence were

placed by him in a bag which he was carrying in his

hand. The appellant had also stated that he was

intending to throw the clothes but before he could do

so, he was caught by the police. We feel that the theory

put forward in the testimony of the said witness that the

appellant was carrying the worthless incriminating

articles, i.e., his clothes with him in a bag for almost

two days after the incident, is totally unbelievable. It is

clear as daylight that these recoveries have been

planted because it is hard, if not impossible, to believe

that the appellant who was a free bird and had an ample

opportunity to destroy the clothes would keep the same

40 Criminal Appeal No. 630-631 of 2018 with him for almost two days after the incident so as to

facilitate the police to recover the same at a later point

of time.

47. The lopsided manner in which trial was conducted

is fortified from the evidence of Sub-Inspector Prahlad

Singh(PW-12) who was allowed to narrate the entire

confession of the appellant, in his examination-in-chief.

This procedure adopted by the trial Court in permitting

a police officer to verbatim narrate the confession made

by an accused during investigation is grossly illegal and

contrary to the mandate of Sections 24, 25 and 26 of

the Indian Evidence Act, 1872. Not only this, the trial

Court even allowed the confessional statement of the

appellant, to be exhibited in the evidence of the witness,

which further establishes that the trial was conducted

in a totally distorted manner.

41 Criminal Appeal No. 630-631 of 2018

48. Anuj Tyagi(PW-13), who was posted as a Constable

at Police Station Kashipur deposed that he went to the

FSL to hand over the blood samples, hair samples and

two slides for DNA test relating to the case at hand. The

case property was deposited vide receipt No. 694/2016

dated 29th June, 2016. The said witness also stated that

constable Vijay Pal went to the FSL carrying with him

the case property related to the case under the order of

ACJM, Kashipur and higher police officials. Anuj

Tyagi(PW-13) proved the signatures of said Vijay Pal on

the documents. Nonetheless, no explanation is

forthcoming from the record as to why Constable Vijay

Pal himself was not examined by the prosecution.

49. What is significant to note from the evidence of

Anuj Tyagi (PW-13) is that he did not utter a single word

as to who handed him the sample packets and what was

42 Criminal Appeal No. 630-631 of 2018 the condition of the sample packets when he carried the

same to the FSL.

50. Om Prakash Sharma, Investigating Officer(PW-

14), also gave evidence to the effect that he seized the

forensic samples from the crime scene where the body

of the child-victim was lying. He stated that the clothes

of the appellant were also seized upon his arrest, which

were found stained with blood and bore marks of

semen. Investigating Officer(PW-14) in his examination-

in-chief, also made a detailed narration of the

confessional statement made by the appellant and also

proved the said confessional statement, which again

reflects the total lackadaisical approach of the presiding

officer who conducted the trial.

51. The Investigating Officer(PW-14) also deposed that

the medical officer(PW-7) had handed over the

43 Criminal Appeal No. 630-631 of 2018 samples/articles for forensic evaluation and DNA

profiling which were duly sealed and were sent for

scientific examination. However, the fact remains that

neither the documents/memorandums pertaining to

the proceedings of sealing the said samples/articles

were exhibited in evidence nor did any of the

prosecution witnesses gave evidence for proving this

vital procedure.

52. A vague assertion was made by the Investigating

Officer(PW-14) that on 26th June, 2016 and 28th June,

2016, the clothes of the appellant along with samples of

his blood, hair and slides of vaginal smears and swabs

of the child-victim were prepared and sent to the FSL

for DNA profiling and forensic examination by the

permission of the Court.

44 Criminal Appeal No. 630-631 of 2018

53. Nevertheless, the fact remains that the evidence of

the Investigating Officer(PW-14) is totally silent

regarding the deposit of these samples/articles in the

malkhana of the police station or the mode and manner

of transmission thereof from the police station to the

FSL. No forwarding letter pertaining to the transmission

of the samples was proved in the testimony of the

Investigating Officer(PW-14) or any other police witness.

The malkhana-in-charge of the police station was also

not examined by the prosecution.

54. In order to make the DNA report acceptable,

reliable and admissible, the prosecution would first be

required to prove the sanctity and chain of custody of

the samples/articles right from the time of their

preparation/collection till the time they reached the

45 Criminal Appeal No. 630-631 of 2018 FSL. For this purpose, the link evidence would have to

be established by examining the concerned witness.

55. Evidently, there is not even a semblance of

evidence on record to satisfy the Court that the

samples/articles collected from the dead body of the

child-victim and those collected from the appellant

which were later forwarded to the FSL were properly

sealed or that the same remained in a self-same

condition right from the time of the seizure till they

reached the FSL. No witness from the FSL was

examined by the prosecution to prove that the

samples/articles were received in a sealed condition.

Hence, there is every possibility of the samples being

tampered/manipulated by the police officers so as to

achieve a favourable result from the FSL, thereby,

inculpating the appellant in the crime.

46 Criminal Appeal No. 630-631 of 2018

56. Consequently, we feel that the DNA/FSL reports

cannot be read in evidence. Once, these reports of the

FSL are eschewed from consideration, there remains no

evidence on the record of the case so as to connect the

appellant with the crime.

57. Resultantly, the conviction of the appellant as

recorded by the trial Court and affirmed by the High

Court for the offences mentioned above cannot be

sustained.

58. The impugned judgments dated 5th April, 2017

and 6th April, 2017 passed by the trial Court and dated

5th January, 2018 passed by the High Court, do not

stand to scrutiny and are hereby quashed and set aside.

The appellant is acquitted of the charges. He is in

custody and shall be released from prison forthwith, if

not wanted in any other case.

47 Criminal Appeal No. 630-631 of 2018

59. The appeals are allowed accordingly.

60. Pending application(s), if any, shall stand disposed

of.

….……………………J. (VIKRAM NATH)

……………………….J. (SANJAY KAROL)

...…………………….J. (SANDEEP MEHTA) NEW DELHI;

MARCH 04, 2025.

48 Criminal Appeal No. 630-631 of 2018