REPORTABLE IN THE SUPREME COURT OF INDIA      CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1000 OF 2006

Pawan          .. Appellant

Versus State of Uttaranchal                                  ..Respondent

WITH CRIMINAL APPEAL NO.     394          OF 2009

(Arising out of S.L.P. (Crl.)No.5209/2006) Arjun                    .. Appellant

Versus State of Uttaranchal                                  ..Respondent

WITH CRIMINAL APPEAL NO.  1036 OF 2006

Aamir          .. Appellant

Versus State of Uttaranchal                ..Respondent

WITH CRIMINAL APPEAL NO. 1743 OF 2007

Babu                 .. Appellant Versus

State of Uttaranchal                ..Respondent

J U D G E M E N T

R.M. Lodha, J.

Leave granted in S.L.P. (Crl.) No.5209/2006.  

The  appellants  in  these  four  appeals  suffered  death

sentence for the offence punishable under Section 302/34 IPC,

at the hands of   Additional Distt. & Sessions Judge, First Fast

Track  Court,  Nainital.   The  trial  court  also  convicted  the

appellants for the offences punishable under Sections 376 and

377, IPC and sentenced them to life imprisonment.  Each of the

appellants was also convicted for the offence punishable  under

Section  201/34,  IPC and sentenced  to  undergo seven years

rigorous imprisonment and fine of Rs.2,000/-  and in default in

payment of fine, additional imprisonment of six months.   Since

death sentence was awarded, the trial court made a reference

to the High Court  for  confirmation. The appellants  challenged

the judgment of the trial court in separate appeals before the

High Court of Uttaranchal at Nainital. The  death reference and

appeals  were heard together.   Vide judgment dated  July 12,

2005,  the  High  Court  maintained  the  conviction  of  the

appellants  under Sections 302/34, 376 and 201/34, IPC.  The

sentence of death awarded under Sections 302/34, IPC to each

of  the  appellants  was  commuted  to  that  of  rigorous

imprisonment for life.  The sentence  awarded by the trial court

2

under Sections 376 and 201/34,  IPC, was maintained.   The

High  Court,  however,   acquitted  the   appellants   of  charge

under  Section  377,  IPC  and  their  conviction  and  sentence

under this count was set aside.    It is from the judgment dated

July 12,  2005 that these four criminal appeals by special  leave

arise.

2. Amar Singh (PW-4)  is  a migrant  labourer  from Nepal.

He  and  his  minor  daughter  Sushma  aged  six  years   were

residing in the locality  known as Raj Mahal Hotel Compound

Mallital, Nainital.   On September 25, 2003 at about 8.00 A.M.

Sushma   left her  home to ease herself.  When she did not

return  for quite some time, she was looked for in the  market,

around the lake and near about by her father but of no avail.

Despite  frantic efforts when  her whereabouts   could not be

known,   PW-4   reported   her  disappearance  (Ext.Ka-10)  at

around 4.00 P.M. at Police Station, Mallital.   The night became

horrendously   eventful  for  PW-4;  he  and  three  migrant

labourers from  Nepal, namely,  Veer Bahadur (PW-2), Puran

(PW-3) and Mangal (PW-5) were waiting for  Sushma to return.

At about 1.30 A.M., four persons came  from the side of the

road up to vacant plot of one Sardarji in that  locality and  were

3

seen  throwing the dead body of a girl from the gunny   bag in

that plot.  The  gunny bag was also thrown over there.  PW-2,

PW-3, PW-4 and PW-5 raised  alarm  and caught hold of them;

they were  Babu (A-1), Aamir (A-2), Pawan (A-3)  and Arjun (A-

4) and the dead body was of Sushma (victim).  A-1, A-2, A-3

and A-4 were taken to the  Police Station, Mallital.

3. PW-4  lodged  the  written  report  at  about  2.00  A.M.

(September 26, 2003)  and a case under Sections 302/201/34

IPC  was  registered  against  A1,  A-2,  A-3  and  A-4.    Their

formal arrest    was made.  In the morning of September 26,

2003 at about 6.30 A.M.  seizure memo of the dead body was

prepared by the investigating officer Bachhan Singh Rana (PW-

11).   Dr. K.S. Dhami (PW-1) conducted post-mortem of dead

body of  Sushma  at  about  1.00 P.M.  The accused persons

were also  sent for medical examination.  On the basis of the

disclosure statement A-1 and A-2,   two feet long electric wire

of  yellow colour   from  the house of Ramesh Monga situate

near   Sanwal  School  where the accused  were then residing

was recovered  vide Memo (Ext. Ka-6-A)

4. On  September  27,  2003,  while  A-1,  A-2,  A-3  and  A-4

were in  District Jail, Nainital, their underwears were seized and

4

sent  for  chemical   examination  to   Forensic  Science

Laboratory, Agra.  The Pyajama and other items of victim were

also sent to Forensic Science  Laboratory, Agra.  

5. After  receipt  of  the  post-mortem  report,  the  offences

under Sections 376 and 377 IPC were also added.

6.    Aamir’s   statement  under  Section   164,  Cr.P.C.  was

recorded  by the  Judicial  Magistrate,  Nainital  on   October  7,

2003.

7. The investigating officer  on completion of   investigation

submitted charge sheet against A-1, A-2, A-3 and A-4  for the

offences   punishable  under  Sections  302/34,  376,  377  and

201/34  IPC.   The  Chief  Judicial  Magistrate,  Nainital,  took

cognizance and committed  the  case to  the  Sessions  Judge,

Nainital  which was transferred to the court of  Additional Distt.

& Sessions Judge, First Fast Track Court, Nainital.

8. The defence  of the accused persons   was one of simple

denial.   They stated that  they have been falsely implicated in

the case.   

9. Dr.  K.S.  Dhami  (PW-1)  who  conducted  post  mortem

examination on the dead body of victim found following injuries.

5

“Labiamajora  are  separated.   Hymen  ruptured. Reddish  secretion  inside  the  vagina.    Rectum – laceration  & abrasion around the  external region on  separation  of  gluteal  fold  large  rectal  canal  is visible  which   is  dilated.  Spintsers  are  damaged. There is blood present in the anal canal.  Mucosa is also damaged.  Both rectal and vaginal  smears are taken.  There is well  defined  ligature mark  on the   upper  part  of   neck  slightly  depressed  and encircling the  neck    horizontally  and completely. Colour is reddish & margins are ecchymosed.  On dissection of  ligature mark there is extra vassion of blood  into  the   sub  cutaneous  tissue  under  the ligature  mark as well as adjacent structures.”   

Dr.K.S. Dhami (PW-1) recorded cause of death being asphyxia

as a result  of strangulation.  These injuries  according to Dr.

K.S. Dhami were sufficient in the ordinary course of nature to

cause  death.  

10.      On the basis of the medical evidence, no doubt is left

that  victim  died of   homicidal  death and  that  she  was

raped  before   being  murdered.   The  medical  evidence

shows   that  her  hymen  was  ruptured;   labiamajora

separated  and  there  was  reddish  secretion  inside  the

vagina.   These are indicative of  having the sexual assault.

Dr. K.S. Dhami further opined  the rape on the deceased  is

possible   to  have occurred during the time of 8.00 A.M.  on

6

September 25, 2003 to the night (intervening night between

September  25 and 26,  2003).   The evidence  of  Dr.  K.S.

Dhami has gone unchallenged in so far as A-3 and A-4  are

concerned and  in his cross examination on behalf of A-1

and A-2, nothing has been elicited  which may  cast  doubt

with regard to his testimony.  

11.       There   is  no  eye  witness   account  and  the  case

depends wholly upon circumstantial evidence.

12.          When a case rests on circumstantial evidence, such

evidence  must  satisfy  oft-quoted   tests  viz:  (1)   the

circumstances from which an inference of guilt  is sought to

be  drawn,   must  be  cogently  and  firmly  established;  (2)

those  circumstances  should  be  of  definite  tendency

unerringly  pointing towards the guilt of the accused;  (3) the

circumstances taken cumulatively should form a chain  so

complete that there is no escape from the conclusion  that

within all human probabilities  the crime was committed by

the  accused   and  none  else;  and  (4)  the  circumstantial

evidence in order  to  sustain  conviction  must  be complete

and incapable of  explanation of any other hypothesis than

that of the guilt of the accused and such evidence  should

7

not  only  be  consistent  with  the  guilt  of  the  accused  but

should be inconsistent with his innocence.  

13.      Where   the  entire  case  hinges  on   circumstantial

evidence,  great  care  must  be  taken  in  evaluating

circumstantial  evidence to  ensure that  the circumstances

on which the   prosecution relies are wholly  consistent with

the sole hypothesis of the guilt of the accused.

14.      Legal  principles  with  regard  to  the  circumstantial

evidence in criminal trial have been explained by this Court

time and again; the first  in long line of these cases being

Hanuman Govind Nargundkar v. State of M.P.  [AIR (1952)

SC 343]  and  of  late, State of  U.P. v. Satish (2005)3 SCC

114.  Reference to all these decisions is not necessary as

we  have  already  noticed  these   principles  in  preceding

paragraphs.   However,  Mr.T.V.  George,  learned  counsel

appearing for A-3,  referred  to a decision of this Court in the

case  of    Shankarlal  Gyarasilal  Dixit  vs.  State   of

Maharashtra,   (1981)  2 SCC 35  which we may refer  to.

The learned counsel relied upon the following  observations

made therein:

8

“…..It  is  not  to  be  expected  that  in  every  case depending on circumstantial evidence, the whole of the law governing cases of circumstantial evidence should be set out in the judgment. Legal principles are not magic incantations and their importance lies more in their application to a given set of facts  than in  their  recital  in  the  judgment.   The  simple expectation is  that  the judgment  must   show that the finding of guilt, if any, has been reached after a proper and careful  evaluation of  circumstances in order to determine whether they are compatible with any other reasonable hypothesis.  

The High Court, it must be said, has referred to the recent decisions of this Court in Mahmood v. State of U.P.  (1976) 1 SCC 542 and Chandmal v State of Rajasthan   (1976) 1 SCC 621 in which the rule governing  cases  of  circumstantial  evidence  is reiterated.  But, while formulating its own view the High Court, with respect, fell into an error in stating the true legal position by saying that what the court has to consider is whether the cumulative effect of the  circumstances  establishes  the  guilt  of  the accused beyond the “shadow of doubt”. In the first place,  ‘shadow  of  doubt’,  even  in  cases  which depend  on  direct  evidence  is  shadow  of “reasonable”  doubt.   Secondly,  in  its  practical application, the test which requires the exclusion of to her alternative hypotheses is far more rigorous than the test of proof beyond reasonable doubt.”     

15.  It  needs no emphasis that while evaluating circumstantial

evidence,  which of course has to be done  carefully,  the

circumstances must be of such a nature  as to be capable of

supporting  the  exclusive  hypothesis   that  the  accused  is

9

guilty  of  the   crime  of  which  he  is  charged  and   the

circumstances  so shown by the prosecution are compatible

with no other reasonable hypothesis.    

16.         The following circumstances were relied upon by the

prosecution,  and  accepted  by the  trial  court   in  order  to

establish the charges  against  A-1, A-2, A-3 and A-4:

(i) On  September  25,  2003,  at  about  8.00  A.M., victim  left her home to ease herself.

(ii)Victim did not return to her house and all efforts on  that  day  in  search  of  her  and  her whereabouts did not yield any result.

(iii) On that very day i.e. September 25, 2003, a missing  report  was  lodged  by  Amar  Singh (PW-4) at about 4.00 P.M. at Police Station, Mallital.

(iv)   In the intervening night of September 25/26, 2003, PW-4 and others  were sitting  outside their  huts waiting for  the victim, then about 1.30  A.M.  in  the  night   they  saw  accused coming  towards  the  vacant  plot  of  one Sardarji  with  a  gunny  bag  and  were  seen throwing  the dead body of victim.

(v) PW-2,  PW-3,  PW-4  and  PW-5   seeing  the accused  persons,  raised  an  alarm  and apprehended all of them at the spot.

(vi) A-1,  A-2,  A3  and  A-4  made  extra-judicial confession of their guilt before PW-1, PW- 2, PW-3 and PW-4.

1 0

(vii)     The accused persons were then taken to the  Police  Station,  Mallital   and  in  the intervening night of September 25/26, 2003, at about 2.00 A.M.,  First Information Report was lodged.

(viii) At  the  instance   and  on  the  disclosure statement of A-1 and A-2, piece of wire was recovered  from  the  house  of  Ramesh Monga.

(ix)   On September 27, 2003, the underwears of  A-1,  A-2,  A-3  and  A-4  were  attached and  sent  for  chemical  examination.   The chemical  examination  report  confirmed that  the   underwears  were   stained  with human  semen and spermatozoa.

(x) A-2  made  a confession of his guilt before the  Judicial  Magistrate  on  October  7, 2003.]

(xi) The  medical  evidence  that   victim   was subjected to rape and carnal inter course.

(xii)     The medical  evidence also indicative of the      fact that the offences of rape, carnal inter-course  and murder  were committed, in all  probability, by more than one person.

                  (xiii)   No enmity between  PW-2,  PW-3,  PW-4

and PW-5 against  A-1, A-2, A-3 and A-4 nor   PW-1, PW-2, PW-3 and PW-4  had any special relations with the police.  

(xiv) No explanation by A-1, A-2, A-3 and A-4 as to how the dead body of victim came into  their possession and  their act of disposing  of  the  dead  body  in  the midnight.

1 1

(xv) The fact that the victim was subjected to rape  and  carnal  intercourse  itself indicate the mental bend of mind of the accused  and  further  the  motive  to commit her murder and then  attempt to dispose of her dead body surreptitiously to  screen  themselves  from  legal punishment.

(xvi) Confirmation and  presence of  semen and spermatozoa  on the underwears of A-1, A-2, A-3 and A-4.

(xvii) Vaginal   and  anal/rectal  smear  of  the victim  and  the  confirmation  of  human blood  and  human  semen  and spermatozoa.

17. The High Court  discarded the  circumstances mentioned

at serial Nos. (vi), (viii) and (x)  and the prosecution  case of

carnal  intercourse.  Despite  that,  the  High  Court    was

convinced that all other circumstances have been  cogently and

firmly established.

18. In so far as circumstances (i) & (ii) are concerned,  none

of the accused persons disputed the said circumstances.  The

circumstance (iii) is a matter of record and fully proved. As a

matter  of  fact  there was no serious challenge with regard to

1 2

proof  of  circumstance  (iii)  by  the   counsel  for  the  accused

persons.        

19. Mr. T.V. George, the learned counsel for A-3 highlighted

inconsistencies in the  ocular version of  PW-2, PW-3, PW-4

and PW-5 to  bolster  up his   contention  that   their  evidence

deserves   rejection.   He  referred  to  variations  in  the  first

information report and the deposition  of these witnesses.  With

reference  to  the  site  plan  (Ext.Ka-13),  the  learned  counsel

sought to contend that Hotel Rajmahal and its compound have

not been shown and it was not probable for these witnesses to

see in the midnight the dead body being thrown from the gunny

bag.    He  argued  that circumstances (iv), (v) and (xiv) cannot

be held to be established.  

20. PW-4 is the father of victim.  PW-2, PW-3 and PW-5 are

migrant labourers from Nepal like PW-4.  They all were residing

in  the  same  compound  viz,  Rajmahal  Hotel  Compound.   If

despite frantic search throughout the day,  the girl could not be

traced, there was nothing  unusual if they were sitting outside

the hut of PW-4 in the night with a hope that the girl may return

or somebody may leave her.    In the night at about 1.30 A.M.,

they  saw  four  persons  carrying  one  gunny  bag  and  going

1 3

towards plot of one Sardarji.  They saw those persons throwing

a dead body from the gunny bag in that plot.   The dead body

was of Sushma. They raised  alarm and  caught hold of the

accused  persons.   They  took  the  accused  persons  to  the

police station and  handed  them over to  the police.   PW-4

lodged F.I.R.  and all of them came back to the place  near the

dead body.  Sans insignificant  and minor contradictions here

and  there,   all  these  four  witnesses  are  consistent  in  their

version  on  material  aspects  as  noticed  above.    Merely

because the names  of  two witnesses were not mentioned in

the F.I.R., their presence does not become doubtful.  Omission

of  the names of two witnesses in the F.I.R.  is not material

particularly because it is not necessary that all the names of the

witnesses be mentioned in the F.I.R.. It is true that in the site

plan (Ext. Ka-13), Hotel Rajmahal  and its compound have not

been shown but the site map basically reflects the place  from

where dead body of the deceased was recovered and the place

from   where  the  accused  persons  are  said  to  have  been

apprehended.   Site map also reflects the place  from  where

gunny  bag  containing  hawai  chappal  of  the  deceased  was

recovered.  However, the evidence of PW-2, PW-3, PW-4 and

1 4

PW-5  leaves  no  manner  of   doubt  that  Hotel   Rajmahal  is

situate in that vicinity and near the Hotel  Sitakiran  which is

shown  in the site plan.   PW-2 is specific that Hotel Sitakiran is

situate near Hotel Rajmahal.   In the site plan drain has been

shown in the east to Hotel Sitakiran.  Sanwal School has also

been shown in the  site plan.   PW-2 in his deposition has also

stated that  Sanwal School is in the east of the hotel.    The

testimony  of PW-4 also shows that Sanwal School is situate at

a short distance of  his hutment.  All these  witnesses reside in

that locality.  Seen thus, merely because Hotel Rajmahal and

its compound have not been shown in the site plan, it does not

in any way affect the deposition of PW-2,    PW-3, PW-4 and

PW-5.

21. The  submission  of   the  learned  counsel  that  in  the

absence of any  light at the place of occurrence,  it was highly

improbable that  PW-2,  PW-3,  PW-4 and PW-5 saw the four

accused persons carrying gunny bag and going to the vacant

plot of Sardarji and throwing  a  dead body does not appear to

us  to be of substance. The  testimony of PW-3 and PW-5 in

respect  of  light  stands  corroborated  by  the  testimony  of

investigating officer  (PW-11) who  has also deposed that there

1 5

was light at the gate of the  Sanwal School and also near the

hutment of PW-4.  Significantly, none of these witnesses  (PW-

2, PW-3, PW-4 and PW-5)  has been cross-examined in this

regard.  

22. Having  carefully  gone  through  the  deposition  of  PW-2,

PW-3,and PW-4 and PW-5,  we find  ourselves in  agreement

with the view of the trial court as well as that of the High Court

that circumstances (iv), (v) and (vii) are  clearly proved.  

23. That  the  underwears  of  the  accused  were  seized  on

September 27, 2003 when they were in jail and these articles

were sent for  chemical examination is not in dispute.  That the

evidence  pertaining  to  chemical  examination  of  underwears

shows that those underwears  were found  stained with human

semen  and  spermatozoa  is  also  not  in  dispute.   Mr.   T.V.

George,  learned  counsel,  however,  strenuously   urged  that

merely because underwears were found  stained with  human

semen  by  itself  cannot  be  used  as  an  incriminating

circumstance against the accused.  Learned  counsel  in this

regard  placed  reliance  upon  the  following  decisions:  (1)

Shankarlal Gyarasilal Dixit  vs.  State of Maharashtra, (1981) 2

SCC 35; (2) Subhash Chand vs. State of Rajasthan (2002) 1

1 6

SCC  702  and  Sadashiv  Ramrao  Hadbe  vs.   State  of

Maharashtra And Anr.,  (2006) 10 SCC 92.

24. Learned counsel  heavily relied   upon  paragraph 28 of

the report   in  the case  of  Shankarlal  Gyarasilal  Dixit  which

reads thus:

“The discovery of  a blood-stain   of  the ‘B’  Group measuring  0.5  cm in  diameter  on  the  appellant’s pant and of dried stain of semen on his underpant are circumstances  far  too feeble to  establish  that the appellant raped  or murdered Sunita.  ‘B’  Group is not an uncommon group of blood and no effort was made to exclude the possibility that the blood of the appellant belonged to the same group.  As regards the dried stain of semen on the appellant’s underpant,  he was a  grown up man of 30 years and  no  compelling  inference   can  arise  that  the stain was caused during the course of the sexual assault committed by him on the girl.”

In  Shankarlal Gyarasilal Dixit,   the presence of a  dried

stain  of  semen  on the  underpant  of  the  accused,  aged 30

years,  was held  too feeble  a circumstance   to  establish  the

guilt.  The aforesaid observation cannot be read to mean that in

no    case   presence  of   dried  stain  of  semen    on  the

underpant/underwear  of the accused can be considered as  an

incriminating  circumstance against the accused.

1 7

25.  Paragraph 19 of  the report in  Subhash Chand  relied

upon by learned counsel  reads thus:

“In the present case  the age of the accused was about 21 years at the time of the incident.  On his arrest he was subjected to medical examination and found  to  be  a  potent  and  capable  person. Presence of semen stain on underwear, assuming that  the  underwear  belonged   to  the  accused, though there is no evidence adduced in this regard, is not by itself  an incriminating piece of  evidence connecting the  accused   with  the  crime  in question.   So  also  the  discovery  of  Group  B bloodstain on the underwear cannot be treated as an  incriminating  piece   of  evidence  against  the accused  connecting  him  with  the  crime  because there is no evidence  that the underwear belonged to  the   accused  and further  the  possibility  of  the underwear   being  stained  with  the  blood  of  the person to whom it belonged, or the accused if  he was wearing it has not been ruled out.”

It   would be seen that  in  the case of  Subhash Chand

there  was no evidence that  the underwear  belonged to  the

accused  and  further  the   possibility  of  the  underwear  being

stained with the blood of the  person  to whom it belonged or

the accused if he was wearing was not  ruled out.   

1 8

26. In  the  case  of   Sadashiv  Ramrao  Hadbe,   this  Court

made the following observations:

“It  is  true  that   the  petticoat  and  the  underwear allegedly worn by the appellant  had some semen but that by itself   is not sufficient to treat that the appellant  had  sexual  intercourse  with  the prosecutrix.   That  would  only   cause   some suspicion on the conduct  of  the appellant  but  not sufficient  to  prove  the   case,  as  alleged  by  the prosecution.”

The aforesaid observation has to be read  in the light of

the  observation  made  in  paragraph  6  of  the  report  that  the

prosecution evidence was found to have many contradictions

and the whole incident seemed to be highly improbable.    

27.    As a matter of fact there is no challenge with regard to

proof of  the circumstances (ix) and (xvi).  The challenge  is on

relevance  of  these  circumstances  on  the  ground  that  the

accused persons are  labourers  and they do not change their

underwears daily and merely because their   underwears were

found to have semen stains, that  by  itself cannot be used as

an  incriminating  circumstance.   We  find  no  merit  in  this

contention.  In our opinion, the circumstances (ix) and (xvi) do

provide  link  in  forming  the  chain  together  with  other

1 9

circumstances  against  the   accused  persons  and  do  not

deserve to be ignored.  Circumstances  (ix) & (xvi) have rightly

been held to be  established by the trial court as well as High

Court.

28. In  so  far  as  circumstances  (xi),  (xii)   &  (xvii)  are

concerned, the evidence of Dr. K.S. Dhami (PW-1) establishes

that  victim  was  subjected  to  rape  and  murder.   Mr.  T.V.

George, learned counsel  for A-3, however,  sought to urge that

the injuries and medical evidence make it   highly improbable

that   four persons raped the minor girl.  Firstly,  no question or

suggestion has been put to PW-1  in this regard.  Secondly,

and more importantly,  semen stain with  spermatozoa  were

found  on  the  underwears  of  all  the  four  accused.  Thirdly,

chemical examination of the vaginal  smear of the victim has

also  confirmed   presence  of  human  blood,  semen  and

spermatozoa.  In view of this evidence, rape of victim  by more

than one culprit  can be safely held to be  established.   The

medical  evidence  proves  beyond  reasonable  doubt  that  the

victim died of homicidal death and that she was raped before

2 0

being murdered.    Circumstances (xi),  (xii)  and (xvii)   to this

extent are  clearly proved.

29. Nothing has been brought on record that  PW-2, PW-3,

PW-4 and PW-5  had any enmity with A-1, A-2, A-3 and A-4 or

had any special relations with the police.  That A-1, A-2, A-3

and A-4 were seen  throwing the dead body  of the victim  in

the  intervening  night  of  September  25/26,  2003  is  also

established.   The  circumstances   (xiii),  (xiv)  and  (xv),  thus,

have rightly been held to be proved by the trial court as well

as High Court.

30. Ms.  Ranjana Narayan,  amicus-curiae for  A-4 submitted

that circumstances  (vi) , (viii) & (x) and part of circumstances

(xi) & (xii) having not been held established by the High Court,

there is break in the  chain and the link having been snapped, it

cannot  be  held  that   chain  is  complete.  It  is  true  that   the

circumstances  (vi), (viii) & (x)  and part of circumstances (xi) &

(xii) with regard to carnal intercourse have not been held to be

proved  but  on  a   careful  consideration  of  the  remaining

circumstances  which  have  been  sufficiently  proved  by

prosecution, we are of the considered view  that the  proved

2 1

circumstances complete the chain  cumulatively and there is no

escape from the conclusion that within all human probabilities

the crime was committed by the accused and none else as the

proved circumstances unerringly point towards the guilt of the

accused.   We are, therefore, unable to accept the submission

of the amicus-curiae.

31.  Mr. L.C. Goyal, learned counsel for A-1 and A-2 submitted

that  these  accused  were  not  given  sufficient  opportunity  to

defend themselves and constitutional mandate was flouted and

also  they were denied their statutory right to be defended by a

pleader  as envisaged under Sections 303 and 304 Cr.P.C.   

32. We deem it  proper  to refer  to the consideration of  this

aspect by the High Court which is as follows:

“In  regard  to  the  submission  that  the  trial  stand vitiated for want of compliance of the constitutional mandate as well as  the legal provisions it need to be stated that  the accused  were committed to the Court  of  Sessions   on 20.12.2003  by the  C.J.M., Nainital  and  when  the  accused  were    brought before the court of Sessions in  pursuance of the commitment  of  the  case  date  for  framing  of  the charge was fixed by the Sessions Judge, Nainital. The  date  fixed  for  the  purpose   was  2.3.2004. Before this date the sessions trial was transferred to the court of Additional Sessions Judge/1 F.T.C.,

2 2

Nainital  for  disposal   according  to  law  and  on receipt  of  the  record  this  transferee  court  fixed 16.3.2004  for  framing  of   the  charge.   The Additional Sessions Judge took up the case for this purpose on 16.3.2004 and in the presence of all the four   accused  persons   framed   charges  against them for the offences as mentioned  above and for the commission  of which the accused were later on convicted.   The order sheet of the said date does not  reflect  the presence of  the defence  lawyer or even  the  public  prosecutor  before  the   learned Additional  Sessions  Judge  and  perhaps  the charges  were  framed  after  perusal  of  the documents of the prosecution  without referring that the  Judge   was  of  the  opinion  that  there  were grounds  for  presuming  that  the  accused  have committed offences which are exclusively triable by the  court  as  envisaged  by  Section  228  of  the ‘Code’.  Record also reveal that till that date neither the  accused  have  engaged  their  own  lawyer  nor they  were provided with a defence lawyer  at the expense of  the  state  as  provided  under  Sections 303 and 304 of the ‘Code’.  The learned Additional Sessions Judge however after framing the charges and  making  an  endorsement  that  the  accused pleaded not  guilty   and claimed to  be tried,  fixed 24.3.2004  for  recording  of  the  evidence  of  the prosecution and directed the prosecution witnesses to  be  summoned.   On  24.3.2004  A.D.G.C. (Criminal) moved an application for adjournment of the trial in view of the prosecution witnesses having not been served with summons and on his prayer the trial was adjourned to 7.4.2004 for recording of the  evidence  of  the  prosecution.   However  no lawyer was appointed on this date also as Amicus Curiae for the accused.  On 7.4.2004, as is evident from the  record  and  the  order  sheet  of  the  said date,  three  prosecution  witnesses,  P.W.1,  P.W.2 and P.W.3 were examined by the prosecution, and on  the  same  day  Sri  M.A.  Khan,  Advocate  was appointed  Amicus  Curiae.   The  Amicus  Curiae

2 3

cross-examined all these three witnesses on behalf of   two  accused  Babu  and  Aamir  only  which indicate  that  only     these  two  accused  were provided  the  Amicus  Curiae  by  the   learned Additional  Sessions  Judge.   The  witnesses  were cross-examined by a lawyer on behalf of other two accused  Pawan and Arjun which indicate that they have engaged the lawyer of  their choice after  the charges against them have already been framed in the trial.

There  can  be  no  doubt  that   although  the charges  were  framed  against  the  accused  on 16.3.2004  without  the  accused  being represented by  their  counsel  and  without  recording  of  the satisfaction of the  Judge that there are grounds for presuming  that  the  accused  have  committed  the offences  with  which  they  were  being  charged  as envisaged by Section 228 of the ‘Code’, but we are of  the  considered  view  that  there  was  enough evidence and material  available on record  at  that time  to  form an  opinion  that  there  was  sufficient ground for  proceeding  against  the accused.   The reason  being  that  at  the  stage  of  framing  of  the charge  the  Judge  is  not  required  to  enter  into detailed scrutiny and consideration of the material and evidence which is available in the form of the record  of  the  investigation  or  the  documents submitted with the charge sheet  and therefore  as the  allegations  stand  against  the  accused supported by the collected evidence even the above infraction in the compliance of the legal provision do not  indicate any prejudice having been caused to the accused and in a situation like this the above aspect  would not  entail  vitiation  of  the entire  trial against the accused.

Amicus Curiae to the two accused in the case was provided  on  the  day,  that  is,  7.4.2004  when three prosecution witnesses were examined in the trial.    Sri  M.A.  Khan,  Advocate  was  appointed

2 4

Amicus  Curiae  for  the  two  accused  and  he proceeded to cross-examine all the three witnesses on that  date itself.   Learned  Senior Counsel  Sri Panwar submitted that a duty is cast on Sessions Judge to see that raw and inexperienced juniors are not  appointed  to  defend  an  accused  in  capital punishment cases and in support of the argument learned counsel pressed into  service the reported decisions   Panchu  Gopal  Das  vs.   State;  A.I.R. 1968  Cal.  38,  and  Mohd.  Kunnumal  vs.  State  of Kerala;  A.I.R.  1963  Ker.  54.   The  argument  was advanced  on  the  assumption  that  the  Amicus Curiae  appointed  by  the  learned  Additional Sessions  Judge  was  an  inexperienced  Advocate, but  we  find  nothing  on  record  to  sustain  the submission made in that behalf.  It appears that Sri M.A. Khan, Advocate was practicing in criminal side in  the  Sessions  Court  at  Nainital  and   judicial notice can be taken of the fact that he is   at present a Brief  Holder  of  the State   of  Uttaranchal  in the High  Court  and  is  conducting  criminal  appeals  in the High Court.   This indicate  that  Sri  Khan has long standing as a criminal lawyer and was rightly appointed as Amicus Curiae to defend the accused in  capital  punishment  case.   Further  he  was assigned the case to defend the two accused at the expense of  the  state  on  the  day when the  three prosecution  witnesses  were  examined  but  the learned   Amicus  Curiae  had  not  sought adjournment  to  avail  some  time  to  prepare  the case.  This indicate that the learned  Amicus Curiae has not felt handicapped  and must have prepared the case to his satisfaction so as to proceed with the cross-examination of the witnesses on that very day  and  looking  at  the  cross-examination  of  the witnesses we do not  find that  for  this  reason any prejudice was caused to the two accused for whom he was appointed Amicus Curiae.”

2 5

We agree with the view of the High Court.  

33.    Now, we deal with the  contention of juvenility  of  Babu

(A-1)  and Aamir (A-2).  The learned counsel submitted  that A-

1  and  A-2  were   ‘juvenile’  within  the  meaning  of  Juvenile

Justice  (Care and Protection of Children) Act, 2000 (for short

‘the Act, 2000’)  on the date of incident and the  trial held by

Additional  Sessions  Judge,  Nainital,  under  the   Code  of

Criminal Procedure was illegal.  With regard to the age of A-2,

reliance is  placed on his  statement  recorded  under  Section

313, Cr.P.C. wherein his age has been recorded as 17  years

and a school leaving  certificate indicating his date of birth as

March 12, 1987.   For A-1, his school  leaving certificate which

records his  date of  birth  July 16,  1988 is  being relied.   The

learned counsel would submit that juvenility can be claimed at

any stage; even for the first time before this Court.  He referred

to Section 7A of the Act, 2000.

34. Section 7A came to be  inserted  in the Act, 2000 with

effect from August 22, 2006.  It reads thus:

“S.7A.  Procedure  to  be  followed  when  claim  of juvenility is raised before any court. – (1)  Whenever a

2 6

claim of juvenility is raised before any court  or a court is of the opinion that an accused person was a juvenile on the date of  commission of the  offence, the court  shall make  an  enquiry,  take  such  evidence  as  may  be necessary (but  not  an affidavit)  so as to determine the age of such person, and shall  record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in  terms of  the provisions  contained  in  this Act and the rules made thereunder, even if the juvenile has  ceased  to  be  so  on  or  before  the  date  of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of  commission of  the offence under sub-section (1),   it shall  forward  the  juvenile  to  the  Board  for  passing appropriate order, and the  sentence if any, passed by a court shall be deemed to have no effect.”

35.  Proviso to sub-section (1)  does lay down that a claim of

juvenility may be raised at any stage, even after final disposal

of the case.  In the case of  Gurpreet Singh v. State of Punjab,

(2005)  12  SCC 615,  the  claim  of   juvenility  under  Juvenile

Justice Act, 1986  was raised for the first time before this Court.

It was held:   

“It  appears that this point  was  not raised either before the trial court or the High Court.  But it is well settled that in such an eventuality,  this Court should first consider the

2 7

legality or otherwise of conviction of the accused and in case the conviction is upheld, a report should be called for  from the  trial  court  on  the  point  as  to  whether  the accused was juvenile on the date of occurrence and upon receipt of the report,  if it is found that the accused was juvenile on such date and continues to be so, he shall be sent to juvenile home. But in case it finds that on the date of the occurrence, he was juvenile but on the date this Court is passing final order upon the report  received from the trial court, he no longer continues to be juvenile, the sentence imposed against him would be liable to be set aside.  Reference in this connection may be made to a decision  of  this  Court  in  Bhoop  Ram v.  State  of  U.P. (1989) 3 SCC 1,  in which case at  the time of  grant  of special  leave to appeal report was called for from the trial court as to whether the accused was juvenile or not which reported that the accused was not a juvenile on the date of the occurrence but this Court, differing with the report of the trial court, came to the conclusion that the accused was  juvenile  on  the  date  the  offence   was  committed and  as  he  was  no  longer  a  juvenile   on  the  day  of judgment of this Court,   sentence awarded against  him was set aside, though the conviction was upheld.”

36.      A benefit of Act, 2000 was sought for the first time by

claiming  juvenility   before  this  Court  in  the  case  of  Murari

Thakur and  Another v. State of Bihar, AIR 2007 S.C. 1129 but

negated.  This Court said:

“Learned counsel  for the appellant firstly submitted that the appellants are entitled to the benefit  of the Juvenile Justice  (Care and Protection of  Children)  Act,  2000 as amended  by the  amendment  of  2006.   We  are  of  the opinion  that  this  point  cannot  be  raised  at  this  stage because neither was it  taken before the Trial Court nor

2 8

before the High Court.   Even otherwise we do not find any merit in the said contention.  The question of age of the  accused  appellants  is  a  question  of  fact  on  which evidence,  cross-examination,  etc.  is  required  and, therefore, it cannot be allowed to be taken up at this late stage.   Hence, we reject this submission of the learned counsel for the appellant.”

37.  The question is : should an enquiry be made or report be

called  for  from  the  trial  court   invariably  where  juvenility  is

claimed  for  the  first  time  before  this  Court.     Where  the

materials placed before this Court by the accused,  prima facie,

suggest that  the accused was  ‘juvenile’ as defined in the Act,

2000 on the date of  incident, it may be necessary to call for the

report or an enquiry be ordered to be made.   However, in a

case where  plea of   juvenility  is  found unscrupulous or  the

materials  lack  credibility  or  do  not    inspire  confidence  and

even, prima facie,   satisfaction of the court is not made out, we

do not think any further exercise in this regard is necessary.   If

the plea of juvenility  was not raised before the trial court or the

High Court and is raised for the first time before this court, the

judicial  conscience of  the  court  must  be satisfied  by placing

adequate  and satisfactory material  that  the accused had not

2 9

attained age of eighteen years on the date of commission of

offence; sans such material any further enquiry into juvenility

would be unnecessary.

38. As regards A-2, two documents are relied upon to show

that he had not attained age of eighteen years on September

25/26, 2003.  His age (17 years) mentioned by the  trial court at

the time of recording his statement under Section 313 Cr.P.C.

is  tentative observation based on physical appearance  which

is  hardly determinative of  age.   The other  document  is   the

school  leaving    certificate  issued  by   Headmaster,  Prem

Shiksha Niketan, Bilaspur, Rampur which does not inspire any

confidence as it seems to have  been  issued on October 16,

2006 after A-2 has already been convicted.  Primary evidence

like entry from the birth register has not been produced.   We  

find  it  difficult   to  accept   Annexure  P-3  (school  leaving

certificate) relied upon by  counsel. For A-1, the only document

placed on record  is  a school  leaving  certificate  which  has

been procured after his conviction.  In his case also, entry from

the  birth  register  has  not  been  produced.   We  are  not

impressed or  satisfied  with  such  material.    There being  no

3 0

satisfactory  and  adequate  material,  prima  facie,  we  are  not

persuaded to call for report about the  age of A-1 and A-2  on

the date of commission of offence.   

39. In the light of our discussion  aforenoted , we find that the

view taken by the High Court  is the only possible  view on a

proper  appraisement of evidence and no other view is possible

and it has not committed any error in upholding the conviction

of  the  accused  persons  for  the  offences  punishable  under

Sections 302/34; 376  and 201/34 IPC.  The sentence awarded

to them calls for no interference.

40. In the result, all the four appeals  fail and are dismissed.

Accused Babu is on bail.  His bail bonds are cancelled.  We

direct  the trial  court  to  take  immediate steps for  putting  him

back in jail to serve out the remaining part of the sentence.   

…………………………………..J (S.B. SINHA)

………………………………………J (ASOK KUMAR GANGULY)

3 1

…………………………………….J (R.M. LODHA)

New Delhi February 26, 2009

3 2