Supreme Court of India
MOHD. FIROZversusSTATE OF MADHYA PRADESH
- Citation
- 2022 INSC 429
- Decided
- 19 April 2022
- Disposal
- Appeal(s) allowed
- Bench
- UDAY UMESH LALIT
Holding
The Supreme Court affirmed the conviction, held that the prosecution proved the appellant's guilt beyond reasonable doubt, and commuted the death sentence to life imprisonment for murder and to a 20‑year term for the sexual assault under Section 376A.
Summary
The appellant, Mohd. Firoz, was convicted for the rape, sexual assault and murder of a four‑year‑old girl, under Sections 302, 376(2)(i), 376(2)(m), 363, 366 IPC and Sections 5(i), 5(m), 6 POCSO. The prosecution relied on circumstantial evidence, the "last seen together" theory, DNA evidence and the appellant's own admission under Section 313 CrPC. The Supreme Court held that the prosecution had proved the guilt beyond reasonable doubt, that the trial was fair and that the appellant had failed to offer any defence, including an explanation under Section 106 Evidence Act. While affirming the conviction, the Court commuted the death sentence to life imprisonment for the murder charge and imposed a 20‑year term for the sexual assault under Section 376A, invoking restorative justice. The appeal was partly allowed, with the sentence modifications.
Issues considered
- The trial court complied with due procedure and provided legal aid; was the trial fair?
- Whether the prosecution proved the appellant's guilt beyond reasonable doubt on the basis of circumstantial evidence, especially the "last seen together" theory.
- Whether the proximity of time between the victim’s last sighting with the appellant and the discovery of her injured body was sufficiently proved.
- Whether the omission of Section 376A in the charge‑sheet was fatal to the conviction.
- Whether the death penalty was warranted or should be commuted in view of mitigating factors and the principle of restorative justice.
Legislation cited
- Code of Criminal Procedure, 1973s. 215, s. 304, s. 313
- Indian Evidence Act, 1872s. 106
- Indian Penal Code, 1860s. 302, s. 363, s. 366, s. 376(2)(i), s. 376(2)(m), s. 376A
- Protection of Children from Sexual Offences Act, 2012s. 5(i), s. 5(m), s. 6
Subjects
child rapemurdercircumstantial evidencelast seen together theorydeath penaltycommutationrestorative justicefair trialPOCSO ActIPC 302IPC 376A
Judgment
168 [2022]REPORTS
SUPREME COURT 19 S.C.R. 168 [2022] 19 S.C.R.
A MOHD. FIROZ
v.
STATE OF MADHYA PRADESH
(Criminal Appeal No. 612 of 2019)
B APRIL 19, 2022
[UDAY UMESH LALIT, S. RAVINDRA BHAT AND
BELA M. TRIVEDI, JJ.]
Penal Code, 1860 – Ss. 302, 376(2)(i), 376(2)(m), 363, 366,
C 376A – Protection of Children from Sexual Offences Act, 2012
(POCSO) – ss. 5 (i), 5 (m), 6 – Evidence Act, 1872 – s. 106 – Code
of Criminal Procedure, 1973 – ss. 304, 313 – Rape and sexual
assault on the young child-victim – Appellant-accused along with
one another accused person was convicted for death sentence and
life imprisonment, respectively, by the trial court for the offences u/
D ss. 302, 376(2)(i), 376(2)(m), 363, 366 IPC r/w. s. 5(i) r/w. s. 6 and
s.5(m) r/w. s. 6 of the POCSO Act – High Court, while dismissing
the appeal, affirmed the order of conviction by trial court regarding
the appellant herein but acquitted the other accused person –
Appellant has, thus, preferred the present appeal – Whether the
E trial had been conducted in a fair manner by following the due
procedure and the prosecution had proved the guilt of the accused
beyond reasonable doubt since the case was based on circumstantial
evidence- Whether the prosecution had adequately proved the
circumstance with regard to the theory of “last seen together”–
Whether the prosecution had sufficiently proved the “proximity of
F time” i.e. ‘the time gap between the victim being lastly seen with the
appellant-accused and the time when she was found injured and
unconscious in the field’ – Held: In the instant case, neither any
explanation was offered by the appellant in his further statement
under Section 313 of Cr.P.C. nor any concrete defence was taken
G during the course of the cross-examination of the witnesses –
Conduct of the accused in absconding away also was a
circumstance duly proved by the prosecution against him – Time
gap between the victim being lastly seen with the appellant-accused
and the time when she was found injured and unconscious in the
field was hardly 12 hours– The said injuries had resulted into her
H death – Prosecution had proved the close proximity of time when
168
MOHD. FIROZ v. STATE OF MADHYA PRADESH 169
the victim was last seen with the appellant and when the victim was A
found unconscious and in injured condition, which ultimately
resulted into her death – Nothing on record to suggest that the due
procedure was not followed or there was deprivation of the legal
aid or legal assistance to accused –Views taken by the Courts below
with regard to the conviction of the appellant for offences charged
B
against him, deem it proper to commute, and accordingly commute
the sentence of death for the sentence of imprisonment for life, for
offence punishable u/s.302 IPC – While balancing the scales of
retributive justice and restorative justice, appellant-accused,
sentenced to imprisonment for a period of twenty years instead of
imprisonment for the remainder of his natural life for the offence C
under section 376A, IPC.
Sentencing - Restorative Justice- One of the basic principles
of restorative justice is to give an opportunity to the offender to
repair the damage caused, and to become a socially useful
individual when he is released from the jail- maximum punishment D
prescribed may not always be the determinative factor for repairing
the crippled psyche of the offender- Hence, while balancing the
scales of retributive justice and restorative justice.
Partly allowing the appeal, the Court
HELD: The first and foremost circumstance regarding the E
visit of the appellant along with ‘R’ on the date and time as alleged
was very crucial and that was admitted by the appellant. By such
admission, even his identity had stood proved. There cannot be
gainsaying that no conviction could be based on the statement of
the accused recorded under section 313 of the Cr.P.C. and the
prosecution has to prove the guilt of the accused by leading F
independent and cogent evidence, nonetheless it is equally
settled proposition of law that when the accused makes
inculpatory and exculpatory statements, the inculpatory part of
the statement can be taken aid of to lend credence to the case of
prosecution. In the instant case also, though the conviction of G
the appellant-accused could not be made merely on his admission
of the circumstance of his visit to the house of the informant on
the previous day evening of the fateful day, such admission could
certainly be taken aid of to lend assurance to the evidence of the
prosecution [Paras 23 & 24][188-E-G; 190-E]
H
170 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 1.2 The next and most important circumstance was with
regard to the theory of “last seen together” propounded by the
prosecution. In this regard, if the version of the witnesses
examined by the prosecution are closely appreciated, there
remains no shadow of doubt that it was duly proved that after ‘H’
refused ‘R’ to permit the appellant-accused to stay at their house,
B
‘R’ had left the house, but the appellant continued to sit in the
courtyard of the house of the informant. It was also proved that
at that time the victim along with her cousins was playing in the
said courtyard, and after sometime the appellant-accused, victim
and RK were not seen at the courtyard. According to the mother
C of the victim, when she was searching for her daughter, she saw
that RK was coming with a polythene bag containing bananas,
and RK told her that the said bananas were given by Bhaijaan
i.e., the appellant, and that he (i.e. Bhaijaan) had taken the victim
along with him. The said RK had fully corroborated the said
version of RK, in his deposition before the Court and the fruit
D
vendor had also stated that the appellant along with two children
had come to his shop to purchase the bananas and that he had
given three bananas to RK and asked him to leave home, and he
had taken the victim with him. The evidence of these witnesses
could not be disbelieved merely because they happened to be
E the relatives of the informant. Pertinently there was no concrete
defence taken during the cross-examination of any of these
witnesses examined by the prosecution. Some minor discrepancies
in the evidence of the witnesses could not be said to be major
contradictions to throw away the case of the prosecution
overboard or disbelieve the prosecution. It was also duly proved
F
that the appellant-accused had taken the victim with him from
the shop of fruit vendor in the evening hours of the alleged
incident, which was a very strong circumstance proved against
the accused. [Para 25][190-F-H; 191-A-E]
1.3 Once the theory of “last seen together” was established,
G the accused was expected to offer some explanation as to under
which circumstances he had parted the company of the victim. It
hardly needs to be reiterated that in the criminal jurisprudence,
the entire burden of proving the guilt of the accused rests on the
prosecution, nonetheless if the accused does not throw any light
H
MOHD. FIROZ v. STATE OF MADHYA PRADESH 171
upon the facts which are proved to be within his special knowledge A
in view of Section 106 of the Evidence Act, such failure on the
part of the accused may also provide an additional link in the
chain of circumstances required to be proved against him. Of
course, Section 106 of the Evidence Act does not shift the burden
of the prosecution on the accused, nor requires the accused to
B
furnish an explanation with regard to the facts which are especially
within his knowledge, nonetheless furnishing or non-furnishing
of the explanation by the accused would be a very crucial fact,
when the theory of “last seen together” as propounded by the
prosecution is proved against him, to know as to how and when
the accused parted the company of the victim. [Para 26][191-E- C
H; 192-A]
1.4 In the instant case, though it was duly proved that the
appellant-accused had taken the victim with him from the shop of
fruit vendor, neither any explanation was offered by the appellant
in his further statement under Section 313 of Cr.P.C. nor any D
concrete defence was taken during the course of the cross-
examination of the witnesses. It is pertinent to note that after
the alleged incident, he had run away to his native place at Bihar.
Admittedly he was arrested therefrom and was brought back after
obtaining the transit remand from the concerned court at
Bhagalpur. The said conduct of the accused in absconding away E
also was a circumstance duly proved by the prosecution against
him. [Para 30][194-F-H]
1.5 So far as the proximity of time is concerned, coupled
with the other evidence, the prosecution had proved the close
proximity of time when the victim was last seen with the appellant F
and when the victim was found unconscious and in injured
condition, which ultimately resulted into her death. [Paras 31 &
32][195-E-F]
1.6 The next issue with regard to the trial having not been
conducted in fair manner, there is nothing on record to suggest G
that the due procedure was not followed or that the appellant-
accused had suffered on account of deprivation of the legal aid or
legal assistance to him. The trial court did provide legal assistance
to both the accused by appointing a lawyer at the expense of the
H
172 SUPREME COURT REPORTS [2022] 19 S.C.R.
A State, who had thoroughly cross-examined all the witnesses
examined by the prosecution, and had also examined two
witnesses on behalf of accused R. Apart from the fact that no
such contention was raised during the course of trial or even
before the High Court in the two separate appeals filed by the
accused represented by two separate lawyers, no such contention
B
has been raised by the appellant-accused even in the memorandum
of the present appeal. The oral submission made by the learned
Senior Advocate appearing on behalf of the accused at the fag
end of his arguments that there was no fair trial conducted, without
substantiating the said submission, cannot be entertained. Even
C otherwise, it may noted that during the course of recording the
further statement, the appellant-accused had responded to the
incriminating circumstances brought to his notice, after fully
understanding them as transpiring from the answers recorded
by the court. It is possible that the incident in question would
have created an anguish amongst the public at large as also
D
amongst the media, nonetheless in absence of any material on
record, no inference could be drawn that because of such media
pressure, the trial was not conducted in fair manner. [Paras 33,
34][195-G; 196-E-G; 197-A-B]
1.7 Having regard to the proved circumstances on record,
E more particularly the circumstances that preceded and followed
from the point the deceased-victim was seen last together with
the appellant-accused, the court has no hesitation in holding that
the prosecution had proved beyond reasonable doubt all the
circumstances individually and also proved the circumstances
F forming a chain, so conclusive as to rule out the possibility of any
other hypothesis except the guilt of the appellant-accused. It was
duly proved that while committing the barbaric acts of rape and
sexual assault on the young child-victim aged about 04 years, the
appellant-accused had inflicted bodily injuries as mentioned in
the post-mortem report which had caused her death. The trial
G court had rightly convicted the appellant-accused for the offences
punishable under sections 302, 376(2)(i), 376(2)(m), 363, 366 of
IPC and section 5(i) read with section 6 and section 5(m) read
with section 6 of the POCSO Act. The said order of conviction
H
MOHD. FIROZ v. STATE OF MADHYA PRADESH 173
was affirmed by the High Court; and is being further affirmed by A
this Court. [Para 36][197-F-H; 198-A]
1.8 The next question that falls for consideration is with
regard to the sentence to be imposed on the appellant. While
affirming the view taken by the courts below with regard to the
conviction of the appellant for the offences charged against him, B
This Court deem it proper to commute, and accordingly commute
the sentence of death for the sentence of imprisonment for life,
for the offence punishable under Section 302 IPC. Since, Section
376A IPC is also applicable to the facts of the case, considering
the gravity and seriousness of the offence, the sentence of
imprisonment for the remainder of appellant’s natural life would C
have been an appropriate sentence, however, this Courtis
reminded of what Oscar Wilde has said - “The only difference
between the saint and the sinner is that every saint has a past
and every sinner has a future”. One of the basic principles of
restorative justice as developed by this Court over the years, D
also is to give an opportunity to the offender to repair the damage
caused, and to become a socially useful individual, when he is
released from the jail. The maximum punishment prescribed may
not always be the determinative factor for repairing the crippled
psyche of the offender. Hence, while balancing the scales of
retributive justice and restorative justice, this Courtdeems it E
appropriate to impose upon the appellant-accused, the sentence
of imprisonment for a period of twenty years instead of
imprisonment for the remainder of his natural life for the offence
under section 376A, IPC. The conviction and sentence recorded
by the courts below for the other offences under IPC and POCSO F
Act are affirmed. It is needless to say that all the punishments
imposed shall run concurrently. [Paras 37 & 43][198-B; 200-D-
G; 201-A]
Masalti vs. State of U. P. AIR 1965 SC 202 : [1964]
SCR 133; Ajay Singh vs. State of Maharashtra (2007) G
12 SCC 341 : [2007] 7 SCR 983; K. Anbazhagan vs.
The superintendent of Police & Ors. (2004) 3 SCC 767
: [2003] 5 Suppl. SCR 610; Zahira Habibullah Sheikh
& Anr. Vs. State of Gujarat & Ors. (2006) 3 SCC 374 :
[2006] 2 SCR 1081 – referred to.
H
174 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Sharad Birdhichand Sarda vs. State of Mahashtra 1984
(4) SCC 116 : [1985] 1 SCR 88; Mohan Singh vs. Prem
Singh & Anr. (2002) 10 SCC 236 : [2002] 3 Suppl.
SCR 5; Rajender vs. State (NCT of Delhi) (2019) 10
SCC 623; Satpal vs. State of Haryana (2018) 6 SCC
610; Surajdeo Mahto vs. The State of Bihar (2022) 11
B
SCC 800; Maneka Gandhi vs. UOI (1978) 1 SCC 248
: [1978] 2 SCR 621; Bachan Singh Vs. State of Punjab
(1980) 2 SCC 684; Machhi Singh vs. State of Punjab
(1983) 3 SCC 470 : [1983] 3 SCR 413; Shatrughna
Baban Meshram Vs. State of Maharashtra (2021) 1 SCC
C 596 – relied on.
Case Law Reference
[1964] SCR 133 referred to Para 20
[2007] 7 SCR 983 referred to Para 20
D [2003] 5 Suppl. SCR 610 referred to Para 20
[2006] 2 SCR 1081 referred to Para 20
[1985] 1 SCR 88 relied on Para 22
[2002] 3 Suppl. SCR 5 relied on Para 23
E (2019) 10 SCC 623 relied on Para 27
(2018) 6 SCC 610 relied on Para 28
(2022) 11 SCC 800 relied on Para 29
[1978] 2 SCR 621 relied on Para 33
F
(1980) 2 SCC 684 relied on Para 38
[1983] 3 SCR 413 relied on Para 41
(2021) 1 SCC 596 relied on Para 42
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
G 612 of 2019.
From the Judgment and Order dated 15.07.2014 of the High Court
of Madhya Pradesh at Jabalpur in Criminal Appeal Nos. 09, 2920 and
3132 of 2013.
H
MOHD. FIROZ v. STATE OF MADHYA PRADESH 175
B. H. Marlapalle, Sr. Adv., Ms. Shreya Rastogi, Ms. Harini A
Raghupathy, Satya Mitra, Advs. for the Appellant.
P. V. Yogeswaran, AAG, Pashupathi Nath Razdan, Ms. Samridhi
Jain, Astik Gupta, Ms. Sneh Bairwa, Prakhar Srivastav, Advs. for the
Respondent.
The Judgment of the Court was delivered by B
BELA M. TRIVEDI, J.
1. The present appeal was initially filed by the appellant-Bibi
Sidhika, the mother of the accused Mohd. Firoz, challenging the legality
and validity of the impugned common judgement and order dated C
15.07.2014 passed by the High Court of Judicature, Madhya Pradesh at
Jabalpur, in the Criminal Reference No. 09 of 2013, Criminal Appeal
No. 2920 of 2013 and Criminal Appeal No. 3132 of 2013. During the
pendency of the present appeal, the said appellant having expired, the
accused Firoz has been substituted as the appellant in view of the order
passed by this Court on 21.10.2021. D
Case of Prosecution : -
2. The case of the prosecution as unfolded before the trial court
was that on 17.04.2013, at about 06:30 PM, one Rakesh Choudhary
(original accused no. 2) came to the house of the informant Ramkumari
E
(mother of the victim) along with an unknown person (the present
appellant-original accused no. 1) and requested the said Ramkumari and
her mother Himmabai to provide an accommodation to the said unknown
person for a day, however, Himmabai refused to provide such
accommodation. Thereafter, Rakesh Choudhary left and his friend sat
for a while at the courtyard of the house of the complainant, where the F
victim aged about four years was playing with her brother Ramkishan
and other cousins. After sometime, Ramkumari found that her daughter
was missing and the other person (the accused no. 1) was also not
there. She along with others tried to search her daughter at the nearby
places, however, her daughter was not found. After sometime Ramkishan
G
came with some bananas and told Ramkumari that Bhaijaan (accused
no. 1) had taken the victim with him. Ramkumari therefore went to the
police station Ghansaur for lodging a missing report. On the next day
i.e., on 18.04.2013 morning, some villagers found that one girl child was
lying unconscious in the field of one Badri Yadav. On receiving such
information, Shyam Yadav, the brother of Ramkumari went to the spot H
176 SUPREME COURT REPORTS [2022] 19 S.C.R.
A and found that the victim was lying unconscious and blood was oozing
from her mouth and nostrils. He immediately took the victim first to the
Police Station and then to the Government Hospital at Ghansaur, however,
since the condition of the victim was deteriorating, she was shifted to
the hospital at Jabalpur. The Doctors who examined and treated her
confirmed that a rape was committed on the victim. Considering her
B
serious condition, the victim was taken to the Care Hospital at Nagpur,
however, on 29.04.2013, the victim expired at the said hospital. Dr.
Pradeep Gangadhar Dixit, a professor and H.O.D. in Forensic Medicine
Department, Medical College, Nagpur along with his colleagues
conducted the postmortem of the dead body of the victim at about 10.35
C AM on 30th April 2013 and noted the external and internal injuries on the
body of the victim. The final cause of death was stated to be
“bronchopheumonia and cerebral hypoxia, which was caused by
smothering the nose and mouth.”
3. In the meantime, Mr. R.D. Barthi, In-charge Inspector, Police
D Station, Ghansaur, on the missing person report given by Ramkumari
Bai had started investigation and found that the accused Firoz Khan (the
present appellant), who was working in Jhabua Power Plant had taken
away the victim deceitfully. He therefore registered an FIR being no. 68
of 2013 against the accused at about 06:40 AM on 18.04.2013 for the
offences under Section 363 and 366 of IPC. The accused Rakesh
E Choudhary came to be arrested on 20th April 2013 and the appellant-
accused Firoz was arrested on 23rd April, 2013 from Husainabad, Police
Station Mojahidpur, Balsaur, Bhagalpur, Bihar.
4. The investigating officer after completing the investigation laid
the charge-sheet against both the accused before the trial court. The
F accused Mohd. Firoz was charged for the offences under sections 363,
366, 376(2)(i), 376(2)(m) and 302 of IPC and under section 5(i), 5(m)
and Section 6 of the Protection of Children from the Sexual Offences
Act, 2012 (hereinafter referred to as the POCSO Act), and the accused
Rakesh Choudhary was charged for the offences under sections 363
G and 366 r/w Section 34 and under Section 109 of IPC and under Section
16/17 of the POCSO Act. Both the accused having abjured their guilt
and claimed to be tried, the prosecution examined as many as 34 witnesses
to prove their guilt. Both the accused denied the allegations levelled
against them in their respective further statements recorded under section
313 of Cr.PC and stated that they were falsely implicated in the case.
H
MOHD. FIROZ v. STATE OF MADHYA PRADESH 177
[BELA M. TRIVEDI, J.]
The accused no. 2 Rakesh Choudhary in his defence examined two A
witnesses i.e., DW-1 Virendra Choudhary and DW-2 Gopal Prasad
Ahirwar. The Sessions Court at Seoni after appreciating the evidence
on record convicted both the accused for the offences charged against
them and awarded death sentence to the accused Firoz for the offence
under section 302 of IPC and directed to undergo rigorous imprisonment
B
for a period of 07 years and pay fine of Rs. 2000/- for the offence under
section 363, to undergo rigorous imprisonment for a period of 10 years
and pay fine of Rs. 2000/- for the offence under section 366 of IPC, to
undergo life imprisonment and pay fine of Rs. 2000/- for the offences
under sections 376(2)(i), 376(2)(m) of IPC and under sections 5(i)r/w 6
& 5(m) r/w 6 of POCSO Act. The Sessions Court directed the accused C
Rakesh Choudhary to undergo rigorous imprisonment for a period of 07
years and pay fine of Rs. 2000/- for the offences under section 363/34,
to undergo rigorous imprisonment for a period of 10 years and pay fine
of Rs. 2000/- for the offences under section 366/34 and to undergo life
imprisonment and pay fine of Rs. 2000/- for the offence under section
D
109 of IPC and for the offences under section 16/17 of POCSO Act.
5. The reference made by the Sessions Court to the High Court
of M.P. at Jabalpur, for the confirmation of the death sentence to the
accused-Firoz was registered as Criminal Reference No. 09 of 2013.
The accused Mohd. Firoz had also filed an appeal being Criminal Appeal
No. 2920 of 2013 and the accused Rakesh Choudhary had filed an appeal E
being Criminal Appeal No. 3132 of 2013 before the High Court. The
High Court vide the impugned common judgement and order dated
15.07.2014 allowed the Criminal Appeal No. 3132 of 2013 filed by the
accused Rakesh Choudhary and acquitted him from the charges levelled
against him, however, dismissed the Criminal Appeal No. 2920 of 2013 F
filed by the accused Mohd. Firoz and confirmed the death sentence
awarded to him. Being aggrieved by the same, the appellant has preferred
the present appeal before this Court.
Evidence: -
6. In order to prove the guilt of the accused, the prosecution had G
examined three sets of witnesses. In the first set, the relatives and
acquaintances of the informant- Ramkumari, mother of the victim, were
examined. The informant Ramkumari deposed inter alia that on 17th
April, 2013 at about 7.00 p.m., when she came home after finishing her
work, she saw that one person (the accused-Firoz Khan) was sitting on H
178 SUPREME COURT REPORTS [2022] 19 S.C.R.
A a chair in the courtyard of her house and Rakesh Choudhary (the other
accused) was sitting on the platform of the courtyard. According to her,
Rakesh Choudhary was telling her mother Himmabai that “Amma
Bhaijaan will sleep here”, however, her mother refused. After the said
conservation, she did not know where the said Choudhary had gone but
Bhaijaan (Firoz) kept sitting on the chair. At that time, her daughters
B
Pooja, Madhu, her brother’s son- Ramkishan and her sister’s son Nilesh
all were playing in the courtyard. She went inside the house and after
some time when she came out, she saw that her daughter Pooja and her
brother’s son Ramkishan were not in the courtyard, and the said Firoz
Bhaijaan was also not seen. She therefore started searching Pooja and
C Ramkishan, and she saw Ramkishan coming with bananas in a polythene
bag. On being inquired by her as to where Pooja was, Ramkishan told
her that Bhaijaan had taken Pooja along with him. She thereafter continued
to search Pooja but could not find her. She, therefore, along with her
sister Jyoti went to the Police Station, Ghansaur to lodge the report. The
said report of missing person was lodged at about 20:35 at the police
D
station, Ghansaur, (Exhibit P-1). She further deposed before the Court
that on the next day, the persons who go out to defecate in open came to
her house and told her brother Shyam that one girl was lying unconscious
in the field. Her brother, therefore, went to the field and found that the
victim was lying unconscious there and blood was oozing from her nose
E and genital organs. Thereafter, she alongwith her mother Himmabai and
her brother Shyam took her daughter Pooja to the police station and then
to the Ghansaur Hospital however Pooja remained unconscious. Her
daughter, thereafter, was taken to the Medical College, Jabalpur, from
Ghansaur Hospital and then to Nagpur by air for treatment, where she
was admitted in the Care Hospital. Her daughter was treated for about
F
08 days in the said hospital and she died on 29th April, 2013. She further
deposed that the doctors of all the places like Ghansaur, Jabalpur and
Nagpur, where her daughter had undergone the treatment had told that
a rape was committed on her and that an attempt was made to murder
her by strangulating her neck. After her death, the Nagpur police had
G registered a report (Exhibit P-2). During the course of her deposition,
she had identified the accused-Firoz present in the Court and stated that
he was the same Bhaijaan. She also stated that the said Firoz had raped
Pooja and inflicted injuries which caused her death. The said version of
PW-1 Ramkumari was fully supported by the witnesses PW-2 Madhu
Yadav who happened to be the sister of the deceased, PW-6 Himmabai
H
MOHD. FIROZ v. STATE OF MADHYA PRADESH 179
[BELA M. TRIVEDI, J.]
who happened to be the grandmother of the deceased and mother of A
Ramkumari, PW-7 Preeti Yadav who happened to be the younger sister
of Ramkumari. They had stated to be present in the house when both
the accused Rakesh and Firoz had come to the house of Ramkumari.
7. The prosecution, in order to prove that the victim was last seen
together with the accused-Firoz had examined PW-31 Ramkishan Yadav. B
The said Ramkishan aged about four years happened to be the son of
PW-5 Shyam Yadav i.e., brother of Ramkumari. Ramkishan deposed
before the Court inter alia that Firozbhai had come to their home and
then had taken him and Pooja to a fruit shop. Firozbhai had given him
three bananas and biscuits and thereafter asked him to go home, however,
had taken Pooja with him. Identifying the accused-Firoz sitting in the C
Court, Ramkishan had stated that he was Firoz Bhaijaan who had taken
her sister Pooja with him and thereafter Pooja was found dead. He
specifically denied in the cross-examination that after Firoz Bhaijaan
gave bananas and biscuits to him, Pooja also came along with him.
8. PW-4 Nitin Namdev was the fruit seller. He deposed that on D
17.04.2013 at about 7.00 pm, one person wearing a white shirt and black
full pant had come with one girl and a boy, both aged about four years,
and had purchased six bananas from his shop for Rs.20/-. He also
identified the accused-Firoz sitting in the Court and stated that he had
come to his shop. He further stated that the said person had given three E
bananas to the boy and asked him to go home and had taken the four
years old girl with him, and then had gone towards the crossing. On the
next day he came to know that a person named Firoz working in the
Power Plant had committed rape on the girl and had killed her, and that
he was the same person who had bought bananas from his shop. In the
cross-examination, he had stated that after some days of the incident, F
the Tehsildar had asked him to come to a school, where he had identified
the accused Firoz.
9. PW-5 Shyam Yadav who happened to be the brother of
Ramkumari and maternal uncle of the victim, had stated that he was not
staying with his mother and sister, however, on the day, when the victim G
was found missing, he had stayed back with them. On the next day
morning, the Village Kotwar Santosh Das had come and informed him
that a girl was lying in the field of Badri Yadav. He therefore went to the
field along with the Kotwar and saw that the girl-Pooja was lying
unconscious and blood was oozing from her nostrils. He also saw her H
180 SUPREME COURT REPORTS [2022] 19 S.C.R.
A underwear, skins of bananas and some money lying near her body. He
took Pooja first to the police station Ghansaur and from there took her to
the Ghansaur Hospital for treatment. According to him, since her condition
was very critical, she was taken to the Hospital at Jabalpur and thereafter
to the hospital at Nagpur for treatment, however, she died there.
B 10. In the second set of witnesses, the prosecution had examined
the doctors who had treated the victim. PW-17 Dr. Bharti Sonkeshariya,
the Medical Officer at the Community Health Center, Ghansaur had
examined the victim at about 7.30 a.m on 18.04.2013. She had stated
that the patient was unconscious, and blood was oozing from her nose
and also from her vagina. As her condition was very critical, she was
C referred to the Medical College, Jabalpur. Her Medical Report was
marked as Exhibit P-36. PW-20 Dr. Bharti Sahu, Assistant Professor at
Medical College, Jabalpur had stated that on 18.04.2013 at about 9.30
a.m. one girl named Pooja was brought for treatment by the police
constable Dilip Rajput of police station, Ghansaur and she had found
D that Pooja was unconscious and was having seizures. After referring to
the injuries, she had opined in the medical report (Exhibit P-40) that the
victim’s hymen was found ruptured due to sexual intercourse and that a
rape was committed on her. PW-21 Dr. Hemant, a Private Medical
Practitioner (Pediatrician) at Jabalpur Hospital, Jabalpur had also
examined Pooja and carried out C.T. Scan. He had found swelling in her
E brain. She was kept on the ventilator, but her condition was very critical
and, therefore, she was shifted to Nagpur.
11. PW-29 Dr. Deepak Ramratan Goyal, Pediatric Surgeon at the
Care Hospital, Nagpur had deposed that on 20th April, 2013 at about
11.00 p.m. Kumari Pooja Yadav was brought to the Hospital by air
F ambulance from Jabalpur Research Centre. The girl was unconscious
and was kept on artificial respiration. She was immediately admitted in
the Intensive Care Unit of Children. He had found swelling in her brain
due to deficiency of oxygen, and several injuries on her vaginal area.
According to him, in spite of all the efforts, the girl could not be saved
G and she died on 29th April, 2013 at about 7.45 P.M. In his opinion, the
cause of death was “Hypoxic Ischemic Encephalopathy with vaginal
injury with cardiorespiratory arrest” i.e., she died due to cardiorespiratory
arrest due to deficiency of oxygen in the brain, due to pressing of mouth
and neck and due to excessive injury in the genital organ. The medical
report given by him was marked as Exhibit P-50.
H
MOHD. FIROZ v. STATE OF MADHYA PRADESH 181
[BELA M. TRIVEDI, J.]
12. The post-mortem of the victim was conducted by PW-24 Dr. A
Pradeep Gangadhar Dixit, Professor and H.O.D in Forensic Medicine
Department, Medical College, Nagpur, on 30th April, 2013, along with
his colleagues. He had recorded the following in the post-mortem note
(Exhibit P-44) -
“1. The dead was wearing a shirt and Pajama of the Hospital. B
There were 8 teeth in upper portion and 10 temporary teeth
on the lower portion of mouth. Right upper incisor tooth and
left upper lateral incisor tooth were absent. Left upper central
incisor tooth was loose with blue colored swollen gums of its
surroundings.
C
1. On examination of the external genitals, I had found that
labia majora and labia minora contused, oedematous with
blue discolouration. Superficial partially healed vulva
laceration present at 6 “O” clock position of size 0.3 cm x
0.3 cm. Vaginal canal oedematous and hyperemic. Hymen
torn at 3.6 and 7 O’clock position. Dilatation of hymenal D
opening. Urethral meatas oedematuous and bruised present.
2. The following injuries were found on the body of
deceased: -
1. Partially healed lacerated wound present over upper E
lip in midline involving mucosal area of size 0.2. cm x 0.2
cm muscle deep surrounding area contused, bluish.
2. Partially healed lacerated wound present over lower lip
in midline involving mucosal area of size 0.2 x 0.2 cm
muscle deep surrounding area contused, bluish. F
3. Abrasion present over lateral aspect of neck on right
side, 3 cm below tip of right mastoid bone of seize 2 cm x 2
cm dark brown.
4. Abrasion present 2 cm below of injury no. 3 of size 2 cm
x 0.3 cm. G
5. Abrasion present over area overlying right submandibular
region of size 0.3 cm x 0.3 cm.
6. Abrasion present over nape of neck on right side at the
level of C-7 vertebra of size 0.4 cm x 0.4 cm.
H
182 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 7. Abrasion present over right intra scapular region of size
0.2 cm x 0.2 cm.
8. Abrasion present over left scapular region of size 1.5
cm x 0.5 cm.
9. Multiple abrasions present over lower portion of stomach
B at right side of size varying from 0.3 cm x 0.2 cm to 0.2.
cm x 0.1 cm.
10. Multiple linear abrasions present over posterior aspect
of left thigh, middle 1/3rd part over an area of size 4 cm x
3 cm of size varying from 4 cm x 0.2 cm to 3 cm x 0.1 cm.
C
11. Tracheotomy wound present over anterior aspect of
neck with stiches in situ which is done for ventilator.
12. A hole over right side of next which is made to assess
the central venous pressure.
D 13. Puncture marks present over both elbow of hands,
upper portion of right wrist, dorsum of right hand and both
legs for administering I.V. fluids.
14. On conducting internal examination of the body, I had
found the following: -
E 1. Symptoms of pneumonia were found in her right lung.
Blood clotted over internal muscles of the neck. All the
organs were found congested. Brain was found
edematous.”
13. The said doctor had deposed that all the injuries found on the
F body were ante-mortem and the opinion regarding the cause of death
was kept reserved. Thereafter, on 15.05.2013, the histopathology report
(Exhibit P-46) was received from the Pathology Department, Medical
College, Nagpur, in which the final cause of death reported was
“bronchopneumonia and cerebral hypoxia, which was caused by
G smothering the nose and mouth.”
14. The accused Firoz was medically examined by PW-18 Dr.
Dipendra Sallame, the Medical Officer at C.H.C. Lakhnadon, District
Seoni on 25.04.2021 and after his examination, he had opined that the
accused Firoz was capable to do sexual intercourse. Doctor had prepared
H and sealed two semen slides of the semen of Mohd. Firoz and had also
MOHD. FIROZ v. STATE OF MADHYA PRADESH 183
[BELA M. TRIVEDI, J.]
sealed a black coloured underwear of the said Firoz encircling a white A
spot, and had handed over the same to the said Constable. His examination
report was exhibited as Exhibit P-39. PW-23 Dr. Vinod Dahayat, the
Medical Officer at District Hospital, Seoni to whom the accused Firoz
was brought on 04.05.2013, had taken his blood sample for the D.N.A.
test. He had also attested the photograph of accused Firoz. The said
B
Doctor had identified the accused Firoz sitting in the Court by stating
that he was the same person whose blood sample was taken and whose
photograph was attested by him.
15. PW-25 Dr. Pankaj Shrivastava, Scientific Officer at F.S.L.,
Sagar had received the Articles relating to the present case through the
C
letter dated 21.04.2013 of the Superintendent of Police, Seoni brought
by the Constable, Police Station Ghansaur on 24.04.2013, and through
the letter dated 04.05.2013 of Superintendent of Police Station, Seoni
brought by the Constable, Police Station Ghansaur on 06.05.2013 for
conducting the D.N.A. test. He had stated that at the time of examination,
all the Articles were found in sealed condition and the seals were found D
intact. He had also stated about the method used by him to obtain the
D.N.A. from the received Articles and also about the opinion (Exhibit
P-47) given by him on the basis of D.N.A. examination. He had opined
as under -
“(i)Identical female D.N.A. profile was obtained from the E
source frock and vaginal smear slide of Pooja Yadav (Article
“A”), frock and swab (Article “F”) and blood sample (Article
“G”).
(ii)The D.N.A. profile obtained from the hair (Article “B”)
found from the place of incident and D.N.A profile obtained F
from the source blood sample (Article “I”) of the accused
Firoz is identical, which confirms this fact that these hair
strands are of the accused Firoz.”
16. The last set of witnesses examined by the prosecution
comprised of the Police Witnesses, panch Witnesses and the Tehsildar G
who had conducted the T.I. Parade. PW-13 Mohammad Sultan was the
Assistant Sub Inspector at the Police Station, Ghansaur. He alongwith
the DSP R.N. Parteti had found the hair strands and skins of bananas in
the field and had sealed them as per the seizure memo (Exhibit P-10)
dated 20.04.2013. He had also stated that on 21.04.2013, he had received
H
184 SUPREME COURT REPORTS [2022] 19 S.C.R.
A from the Constable Dilip, a sealed yellow envelope containing a Frock
and vaginal slides of the deceased in presence of the witnesses and had
prepared the Seizure Memo (Exhibit P-29). PW-15 Head Constable
Niyaz Ahmad at Police Station Ghansaur had registered the missing
person report at Sanha no. 747 as stated by Smt. Ramkumari Yadav on
17.04.2013 at 20:35.
B
17. PW-30 S. Ram Maravi, the Sub Inspector, In-charge Police
Station at Police Station Kindrai, District Seoni (M.P.) was part of the
team constituted by the Superintendent of Police, Seoni for search and
arrest of the accused Firoz. According to this witness, he alongwith
others had gone to Bhagalpur, Bihar and after collecting the call details
C of the accused, his location was found out with the cooperation of the
local police of Bhagalpur. The accused Firoz was arrested from a place
near a mosque situated near the house of his aunt on 23.04.2013, and
was brought back after obtaining the transit remand from the concerned
Court at Bhagalpur as per the order at Exhibit P-50.
D 18. PW-33 In-charge Police Station, Ghansaur Mr. R.D. Barthi
had conducted the investigation of the Missing Person Case No. 10/13,
and during the course of investigation, it was found that the alleged
offences were committed by the accused-Firoz. He therefore had
registered the Crime No. 68/13 for the offence under Section 363, 366
E of I.P.C. (Exhibit P-60) against the accused. He had stated about the
investigation carried out by him and about the arrest of the accused
Rakesh Choudhary. The D.S.P. Mr. R.N. Parteti who had carried out
the further investigation was examined as PW-34. He had deposed about
the details of investigation carried out by him till the chargesheet was
filed in the case. PW-16 Tehsildar at Seoni Mr. Sudhir Jain had conducted
F the identification parade of the accused-Mohd. Firoz. According to him,
the witnesses Smt. Ramkumari, Preeti Yadav, Nitin Namdev and
Himmabai had identified the accused during the course of the T.I. Parade.
19. Significantly the accused-Firoz in his further statement recorded
under Section 313 of Cr.P.C. had admitted about his visit to the house of
G the victim along with the other accused Rakesh Choudhary for making
an inquiry about Shyam. The accused had also admitted having told the
mother of Shyam that he (accused) had come from Gorakhpur and was
staying in the house of Dassi Yadav. The accused also admitted about
his arrest as per the arrest memo Exhibit P-54 and about he having been
H brought to Ghansaur after obtaining the transit remand from the Chief
MOHD. FIROZ v. STATE OF MADHYA PRADESH 185
[BELA M. TRIVEDI, J.]
Judicial Magistrate, Bhagalpur. The other accused-Rakesh Choudhary, A
(who has been acquitted by the High Court), in his further statement had
admitted to the extent that he had gone along with the accused-Firoz to
the house of Ramkumari, however, according to him after showing the
house to the accused Firoz, he had left the house. He in support of his
defence had examined two witnesses i.e., D.W-1 Virendra Choudhary
B
who was residing adjacent to his house and DW-2 Gopal Prasad Ahirwar
who had a footwear shop situated adjacent to the footwear shop of
Virendra Choudhary. The Court is not required to deal in detail with the
said evidence adduced on behalf of the accused-Rakesh, as he has already
been acquitted by the High Court. His acquittal having not been challenged
by the prosecution before this Court, the same has attained finality. C
Submissions:
20. Learned Senior Counsel Mr. B.H. Marlapalle, appearing for
the accused-appellant appointed through the Supreme Court Legal
Services Committee, while fairly not disputing the visit of the appellant-
accused at the house of the victim on the date and time as per the case D
of the prosecution and also not disputing the medical reports of the victim,
tried to highlight certain discrepancies appearing in the evidence of the
witnesses examined by the prosecution. Placing reliance upon the decision
of this Court in the case of Masalti vs. State of U. P.1, he submitted that
while appreciating the evidence of the partisan and interested witnesses, E
the Court should be very careful in weighing such evidence. He also
relied upon various decisions of this Court to substantiate his submission
that the case of the prosecution being dependent on the circumstantial
evidence alone, the entire chain was required to be proved beyond
reasonable doubt by leading cogent evidence, which the prosecution had
failed to prove. The trial court had also failed to bring to the knowledge F
of the accused the clear questions with regard to the incriminating
evidence against the accused. The “last seen theory” as propounded by
the prosecution was also not proved which could connect the accused
with alleged crime. Merely because the accused had admitted his visit
at the place of the victim, no inference could be drawn against the G
accused that he had committed the alleged crime of rape and murder.
Invoking the provisions of Section 313 of Cr.P.C. he submitted that the
said provisions must be observed faithfully and fairly. The attention of
1
AIR 1965 SC 202 H
186 SUPREME COURT REPORTS [2022] 19 S.C.R.
A the accused should be drawn to the specific points in the charge and in
the evidence on which the prosecution claims that the case is made out
against him so that he may be able to give such explanation as he may
desire to give.
In this regard, Mr. B.H. Marlapalle has placed reliance on the
B observations made by this Court in the case of Ajay Singh vs. State of
Maharashtra2. Mr. Marlapalle also submitted that there was a great
media pressure on the investigating agency when the incident occurred
and, therefore, the investigating officer without carrying out an in-depth
investigation hurriedly submitted the charge-sheet against the accused.
Since no advocate was ready to appear for the accused, the trial court
C had appointed a common advocate for both the accused from the legal
service committee, however no fair trial was conducted. The purpose of
the criminal trial is to conduct fair and impartial trial without being
influenced by the extraneous consideration. In this regard, he has placed
reliance on the decisions of this Court in the case of K. Anbazhagan vs.
D The superintendent of Police & Ors. 3 and in the case of Zahira
Habibullah Sheikh & Anr. Vs. State of Gujarat & Ors.4
21. Per contra, the learned Advocate Mr. P.V. Yogeswaran,
appearing for the respondent-State vehemently submitted that this was
one of the heinous and despicable crimes committed by the appellant-
E accused. The trial court and the High Court having relied upon the cogent
evidence adduced by the prosecution and convicted the appellant, this
Court may not re-appreciate the evidence which has already been properly
appreciated by the said two courts. According to him, the appellant-
accused by admitting his visit at the house of the victim along with Rakesh
Chaudhary, admitting his arrest as per the case of the prosecution and
F by not disputing the medical reports of the victim had relieved, half of
the burden of the prosecution to prove the allegations against him. He
further submitted that every minor contradiction or discrepancies in the
evidence of the witnesses cannot be termed as major contradictions
requiring the court to throw the evidence of prosecution overboard. It
G was duly proved that the victim was lastly seen in the company of the
accused and it was within special knowledge of the accused as to what
happened to the victim after he took her with him from the shop of fruit
2
(2007) 12 SCC 341
3
(2004) 3 SCC 767
4
H (2006) 3 SCC 374
MOHD. FIROZ v. STATE OF MADHYA PRADESH 187
[BELA M. TRIVEDI, J.]
vendor. The time gap between the victim being lastly seen with the A
accused and the time when she was found unconscious in the field was
so proximate an inference was required to be drawn that it was the
accused alone who had committed the alleged crime. Lastly, he submitted
that the grievance of mis-trial or trial having not been conducted in fair
manner, was not taken by the appellant-accused either during the course
B
of the trial before the trial Court or even before the appellate stage, and
the same is sought to be raised for the first time before this Court which
should not be entertained.
Analysis and Findings :-
22. It is true that the entire case of the prosecution rested on the C
circumstantial evidence, inasmuch as though certain facts were admitted
by the appellant-accused in his further statement under section 313 of
Cr.P.C., like his visit to the house of the victim on the previous evening
of the alleged incident, and he having been arrested and brought back
from Bhagalpur, Bihar, as per the transit remand granted by the concerned
court, there was no eye witness to the alleged incident. The law with D
regard to the appreciation of evidence when the case of the prosecution
hinges on the circumstantial evidence is very well settled. The five golden
principles laid down by this Court in the case of Sharad Birdhichand
Sarda vs. State of Mahashtra5 and followed in catena of decisions, are
worth reproducing:- E
“153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established. F
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal
distinction between “may be proved” and “must be or should
be proved” as was held by this Court in Shivaji Sahabrao G
Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973
SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations
were made.
5
1984 (4) SCC 116 H
188 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict and
the mental distance between ‘may be’ and ‘must be’ is long
and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the
B hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the
accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
C
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
D with the innocence of the accused and must show that in all
human probability the act must have been done by the
accused.”
23. Keeping in mind the above set of principles, let us examine
whether the prosecution had proved beyond reasonable doubt, the entire
E chain of circumstances, not leaving any link missing for the accused to
escape from the clutches of law. The first and foremost circumstance
regarding the visit of the present appellant along with Rakesh Chaudhary
on the date and time as alleged was very crucial and that was admitted
by the appellant. By such admission, even his identity had stood proved.
There cannot be gainsaying that no conviction could be based on the
F statement of the accused recorded under section 313 of the Cr.P.C. and
the prosecution has to prove the guilt of the accused by leading
independent and cogent evidence, nonetheless it is equally settled
proposition of law that when the accused makes inculpatory and
exculpatory statements, the inculpatory part of the statement can be
G taken aid of to lend credence to the case of prosecution. This Court
while dealing with the issue of inculpatory and exculpatory statements
of the accused made under Section 313 Cr.P.C. has made very apt
observations in case of Mohan Singh vs. Prem Singh & Anr.6
6
H (2002) 10 SCC 236
MOHD. FIROZ v. STATE OF MADHYA PRADESH 189
[BELA M. TRIVEDI, J.]
“27. The statement made in defence by the accused under A
Section 313 CrPC can certainly be taken aid of to lend
credence to the evidence led by the prosecution, but only a
part of such statement under Section 313 of the Code of
Criminal Procedure cannot be made the sole basis of his
conviction. The law on the subject is almost settled that
B
statement under Section 313 CrPC of the accused can either
be relied in whole or in part. It may also be possible to rely on
the inculpatory part of his statement if the exculpatory part is
found to be false on the basis of the evidence led by the
prosecution. See Nishi Kant Jha v. State of Bihar [(1969) 1
SCC 347 : AIR 1969 SC 422] : (SCC pp. 357-58, para 23) C
“23. In this case the exculpatory part of the statement in
Exhibit 6 is not only inherently improbable but is
contradicted by the other evidence. According to this
statement, the injury which the appellant received was
caused by the appellant’s attempt to catch hold of the D
hand of Lal Mohan Sharma to prevent the attack on the
victim. This was contradicted by the statement of the
accused himself under Section 342 CrPC to the effect
that he had received the injury in a scuffle with a
herdsman. The injury found on his body when he was
examined by the doctor on 13-10-1961 negatives both E
these versions. Neither of these versions accounts for the
profuse bleeding which led to his washing his clothes and
having a bath in River Patro, the amount of bleeding and
the washing of the bloodstains being so considerable as
to attract the attention of Ram Kishore Pandey, PW 17 F
and asking him about the cause thereof. The bleeding
was not a simple one as his clothes all got stained with
blood as also his books, his exercise book and his belt
and shoes. More than that the knife which was discovered
on his person was found to have been stained with blood
according to the report of the Chemical Examiner. G
According to the post-mortem report this knife could have
been the cause of the injuries on the victim. In
circumstances like these there being enough evidence to
reject the exculpatory part of the statement of the
appellant in Exhibit 6 the High Court had acted rightly H
190 SUPREME COURT REPORTS [2022] 19 S.C.R.
A in accepting the inculpatory part and piercing the same
with the other evidence to come to the conclusion that the
appellant was the person responsible for the crime.”
28….
29….
B
“30. The statement of the accused under Section 313 CrPC
is not a substantive piece of evidence. It can be used for
appreciating evidence led by the prosecution to accept or
reject it. It is, however, not a substitute for the evidence of the
prosecution. As held in the case of Nishi Kant [(1969) 1 SCC
C 347 : AIR 1969 SC 422] by this Court, if the exculpatory part
of his statement is found to be false and the evidence led by
the prosecution is reliable, the inculpatory part of his statement
can be taken aid of to lend assurance to the evidence of the
prosecution. If the prosecution evidence does not inspire
D confidence to sustain the conviction of the accused, the
inculpatory part of his statement under Section 313 CrPC
cannot be made the sole basis of his conviction.”
24. In the instant case also, though the conviction of the appellant-
accused could not be made merely on his admission of the circumstance
E of his visit to the house of the informant on the previous day evening of
the fateful day, such admission could certainly be taken aid of to lend
assurance to the evidence of the prosecution.
25. The next and most important circumstance was with regard
to the theory of “last seen together” propounded by the prosecution. In
F this regard, if the version of the witnesses examined by the prosecution,
more particularly of PW-1 Ramkumari i.e. the mother of the victim,
PW-6 Himmabai i.e. the grandmother of the victim, PW-7 Preeti Yadav
i.e. the aunt of the victim and PW-31 Ram Kishan are closely appreciated,
there remains no shadow of doubt that it was duly proved that after
Himmabai refused Rakesh Chaudhary to permit the appellant-accused
G to stay at their house, Rakesh Chaudhary had left the house, but the
appellant continued to sit in the courtyard of the house of the informant-
Ramkumari. It was also proved that at that time the victim along with
her cousins was playing in the said courtyard, and after sometime the
appellant-accused, victim and Ram Kishan were not seen at the courtyard.
According to Ramkumari, the mother of the victim, when she was
H
MOHD. FIROZ v. STATE OF MADHYA PRADESH 191
[BELA M. TRIVEDI, J.]
searching for her daughter, she saw that Ram Kishan was coming with A
a polythene bag containing bananas, and Ram Kishan told her that the
said bananas were given by Bhaijaan i.e., the appellant, and that he (i.e.
Bhaijaan) had taken the victim along with him. The said Ram Kishan
examined as PW-31, though a young boy, had fully corroborated the said
version of Ram Kumari, in his deposition before the Court. The fruit
B
vendor, Nitin Namdev (PW-4), had also stated that the appellant along
with two children had come to his shop to purchase the bananas and that
he had given three bananas to Ram Kishan and asked him to leave
home, and he had taken the victim with him. The evidence of these
witnesses could not be disbelieved merely because they happened to be
the relatives of the informant, as sought to be submitted by learned Senior C
Advocate Mr. Marlapalle for the appellant. Pertinently there was no
concrete defence taken during the cross-examination of any of these
witnesses examined by the prosecution. Some minor discrepancies in
the evidence of the witnesses could not be said to be major contradictions
to throw away the case of the prosecution overboard or disbelieve the
D
prosecution. Nothing more could be expected from Ram Kishan who
was aged about four years than what he had stated in his deposition,
more particularly, when his testimony was found to be truthful and when
the identity of the accused was not in dispute. Hence, it was also duly
proved that the appellant-accused had taken the victim with him from
the shop of fruit vendor Nitin Namdev in the evening hours of the alleged E
incident, which was a very strong circumstance proved against the
accused.
26. Once the theory of “last seen together” was established, the
accused was expected to offer some explanation as to under which
circumstances, he had parted the company of the victim. It hardly needs F
to be reiterated that in the criminal jurisprudence, the entire burden of
proving the guilt of the accused rests on the prosecution, nonetheless if
the accused does not throw any light upon the facts which are proved to
be within his special knowledge in view of Section 106 of the Evidence
Act, such failure on the part of the accused may also provide an additional
link in the chain of circumstances required to be proved against him. Of G
course, Section 106 of the Evidence Act does not shift the burden of the
prosecution on the accused, nor requires the accused to furnish an
explanation with regard to the facts which are especially within his
knowledge, nonetheless furnishing or non-furnishing of the explanation
by the accused would be a very crucial fact, when the theory of “last H
192 SUPREME COURT REPORTS [2022] 19 S.C.R.
A seen together” as propounded by the prosecution is proved against him, to
know as to how and when the accused parted the company of the victim.
27. In case of Rajender vs. State (NCT of Delhi)7, this Court has
succinctly dealt with the doctrine of “last seen together” in the light of
Section 106 of the Evidence Act. The relevant observations read as under:
B “12.2.4. Having observed so, it is crucial to note that the
reasonableness of the explanation offered by the accused as
to how and when he/she parted company with the deceased
has a bearing on the effect of the last seen in a case. Section
106 of the Evidence Act, 1872 provides that the burden of
C proof for any fact that is especially within the knowledge of a
person lies upon such person. Thus, if a person is last seen
with the deceased, he must offer an explanation as to how
and when he parted company with the deceased. In other
words, he must furnish an explanation that appears to the
court to be probable and satisfactory, and if he fails to offer
D such an explanation on the basis of facts within his special
knowledge, the burden cast upon him under Section 106 is
not discharged. Particularly in cases resting on circumstantial
evidence, if the accused fails to offer a reasonable explanation
in discharge of the burden placed on him, such failure by
E itself can provide an additional link in the chain of
circumstances proved against him. This, however, does not
mean that Section 106 shifts the burden of proof of a criminal
trial on the accused. Such burden always rests on the
prosecution. Section 106 only lays down the rule that when
the accused does not throw any light upon facts which
F are specially within his/her knowledge and which cannot
support any theory or hypothesis compatible with his
innocence, the court can consider his failure to adduce an
explanation as an additional link which completes the chain
of incriminating circumstances.”
G 28. In Satpal vs. State of Haryana8, this Court observed,
“6. We have considered the respective submissions and the
evidence on record. There is no eyewitness to the occurrence
7
(2019) 10 SCC 623
H 8
(2018) 6 SCC 610
MOHD. FIROZ v. STATE OF MADHYA PRADESH 193
[BELA M. TRIVEDI, J.]
but only circumstances coupled with the fact of the deceased A
having been last seen with the appellant. Criminal
jurisprudence and the plethora of judicial precedents leave
little room for reconsideration of the basic principles for
invocation of the last seen theory as a facet of circumstantial
evidence. Succinctly stated, it may be a weak kind of evidence
B
by itself to found conviction upon the same singularly. But
when it is coupled with other circumstances such as the time
when the deceased was last seen with the accused, and the
recovery of the corpse being in very close proximity of time,
the accused owes an explanation under Section 106 of the
Evidence Act with regard to the circumstances under which C
death may have taken place. If the accused offers no
explanation, or furnishes a wrong explanation, absconds,
motive is established, and there is corroborative evidence
available inter alia in the form of recovery or otherwise
forming a chain of circumstances leading to the only inference
D
for guilt of the accused, incompatible with any possible
hypothesis of innocence, conviction can be based on the same.
If there be any doubt or break in the link of chain of
circumstances, the benefit of doubt must go to the accused.
Each case will therefore have to be examined on its own facts
for invocation of the doctrine.” E
29. Following the above ratio, in the case of Surajdeo Mahto vs.
The State of Bihar9, it was held -
“29. The case of the prosecution in the present case heavily
banks upon the principle of ‘Last seen theory’. Briefly put,
the last seen theory is applied where the time interval between F
the point of when the Accused and the deceased were last
seen together, and when the victim is found dead, is so small
that the possibility of any other person other than the Accused
being the perpetrator of crime becomes impossible.
Elaborating on the principle of “last seen alive”, a 3-judge G
bench of this Court in the case of Satpal v. State of Haryana
(2018) 6 SCC 610, has, however, cautioned that unless the
fact of last seen is corroborated by some other evidence, the
fact that the deceased was last seen in the vicinity of the
9
(2021) 9 Scale H
194 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Accused, would by itself, only be a weak kind of evidence.
The Court further held:
...Succinctly stated, it may be a weak kind of evidence by
itself to found conviction upon the same singularly. But when
it is coupled with other circumstances such as the time when
B the deceased was last seen with the Accused, and the recovery
of the corpse being in very close proximity of time, the Accused
owes an explanation under Section 106 of the Evidence Act
with regard to the circumstances under which death may have
taken place. If the Accused offers no explanation, or furnishes
a wrong explanation, absconds, motive is established, and
C there is corroborative evidence available inter alia in the form
of recovery or otherwise forming a chain of circumstances
leading to the only inference for guilt of the Accused,
incompatible with any possible hypothesis of innocence,
conviction can be based on the same. If there be any doubt or
D break in the link of chain of circumstances, the benefit of
doubt must go to the Accused. Each case will therefore have
to be examined on its own facts for invocation of the doctrine.
30. We may hasten to clarify that the fact of last seen should
not be weighed in isolation or be segregated from the other
E evidence led by the prosecution. The last seen theory should
rather be applied taking into account the case of the
prosecution in its entirety. Hence, the Courts have to not only
consider the factum of last seen, but also have to keep in
mind the circumstances that preceded and followed from the
point of the deceased being so last seen in the presence of the
F Accused.”
30. In the instant case, though it was duly proved that the appellant-
accused had taken the victim with him from the shop of fruit vendor,
neither any explanation was offered by the appellant in his further
statement under Section 313 of Cr.P.C. nor any concrete defence was
G taken during the course of the cross-examination of the witnesses. It is
pertinent to note that after the alleged incident, he had run away to his
native place at Bihar. Admittedly he was arrested therefrom and was
brought back after obtaining the transit remand from the concerned court
at Bhagalpur. The said conduct of the accused in absconding away also
H was a circumstance duly proved by the prosecution against him.
MOHD. FIROZ v. STATE OF MADHYA PRADESH 195
[BELA M. TRIVEDI, J.]
31. So far as the proximity of time is concerned, it is required to A
be noted that Ramkumari, the mother of the victim, on being informed
by Ram Kishan (PW-31) that Bhaijaan i.e. the appellant had taken the
victim with him , the said Ramkumari along with her mother Himmabai
and others had immediately gone to the police station at Ghansaur to
lodge a missing person report (Exhibit P-1). It is true that there was no
B
direct allegation made by them against the appellant in the said report,
however, at that point of time, the informant was not aware about the ill-
intention of the appellant, and no such crime was reportedly committed.
It was only when the victim, on the next day early morning, was found in
the field of Badri Yadav lying unconscious, the FIR was registered against
him. The victim was also immediately taken to the hospital at Ghansaur C
for her treatment, and thereafter, taken to the hospital at Jabalpur and
Nagpur for better treatment as her health was deteriorating. As per the
medical reports, she was raped and the injuries were found on the private
parts of her body. She had remained unconscious all through out. She
expired on 29th April, 2013 and the final cause of death reported was D
“bronchopneumonia and cerebral hypoxia which was caused by
smothering the nose and mouth.” Thus, the time gap between the victim
being lastly seen with the appellant-accused and the time when she was
found injured and unconscious in the field was hardly 12 hours. The said
injuries had resulted into her death.
E
32. Thus, coupled with the other evidence, the prosecution had
proved the close proximity of time when the victim was last seen with
the appellant and when the victim was found unconscious and in injured
condition, which ultimately resulted into her death. The DNA profile
obtained from the hair found from the place of incident and the DNA
profile obtained from the source of blood sample of the appellant was F
identical, and confirmed that the hair strands were of the appellant only,
as per the opinion at Exhibit P-47 given by P.W-25 Dr. Pankaj Srivastava,
Scientific Officer, FSL, Sagar.
Fair Trial: -
G
33. Coming to the next issue raised by the learned Senior Advocate
Mr. Marlapalle with regard to the trial having not been conducted in fair
manner, it may be noted that the concept of fair trial has been enshrined
not only in Article 21 and 39 A of the Constitution of India, but also in
Section 304 of the Code of Criminal Procedure. Free and fair trial is
H
196 SUPREME COURT REPORTS [2022] 19 S.C.R.
A sine qua non of Article 21, and after the formative decision in Maneka
Gandhi vs. UOI10, it has been made clear that the procedure in criminal
trials must be right, just and fair and not arbitrary, fanciful or oppressive.
Article 39A provides for free legal aid to the poor and weaker sections
of the society and ensures justice for all. Section 304 of Cr.P.C. further
provides that where in a trial before the Court of Session, the accused is
B
not represented by a pleader, and where it appears to the court that the
accused has no sufficient means to engage a pleader, the court shall
assign a pleader for his defence at the expense of the State. This Court
also time and again has emphasised the right to a fair trial by the courts,
in the letter and spirit of the right to life and personal liberty flowing from
C the various guarantees enshrined in the Constitution of India. We may
hasten to add at this stage that right to fair and speedy trial applies as
much to the victim as the accused. Right to get speedy justice applies to
the victim as well. Hence considering the gravity and seriousness of the
crime, if the trial is expedited by the Court, it could not to be said that
such trial was not fair to the accused. Of course, while expediting the
D
trial, it is imperative on the Court to see that the due procedure is followed
during the course of trial.
34. So far as the facts of the present case are concerned, there is
nothing on record to suggest that the due procedure was not followed or
that the appellant-accused had suffered on account of deprivation of the
E legal aid or legal assistance to him. The trial court did provide legal
assistance to both the accused by appointing a lawyer at the expense of
the State, who had thoroughly cross-examined all the witnesses examined
by the prosecution, and had also examined two witnesses on behalf of
accused Rakesh Choudhary. Apart from the fact that no such contention
F was raised during the course of trial or even before the High Court in
the two separate appeals filed by the accused represented by two
separate lawyers, no such contention has been raised by the appellant-
accused even in the memorandum of the present appeal. The oral
submission made by the learned Senior Advocate appearing on behalf of
the accused at the fag end of his arguments that there was no fair trial
G conducted, without substantiating the said submission, cannot be
entertained. Even otherwise, it may noted that during the course of
recording the further statement, the appellant-accused had responded to
the incriminating circumstances brought to his notice, after fully
10
H (1978) 1 SCC 248
MOHD. FIROZ v. STATE OF MADHYA PRADESH 197
[BELA M. TRIVEDI, J.]
understanding them as transpiring from the answers recorded by the A
court. It is possible that the incident in question would have created an
anguish amongst the public at large as also amongst the media, nonetheless
in absence of any material on record, no inference could be drawn that
because of such media pressure, the trial was not conducted in fair
manner. B
35. Though, it is true that the “Equality, Justice and Liberty” is the
trinity of fair trial recognized in the administration of justice, it is equally
true that such concept of fair trial entails triangulation of interest of the
accused, the victim and the society at large. In the overzealous approach
to protect the rights of the accused, the rights of the victim who is the C
most aggrieved should not be either undermined or neglected. Similarly,
the cases involving heinous crimes, the society at large would also be an
important stake-holder. Interest of the society, which acts through the
State and prosecuting agencies, should also not be treated with disdain.
Therefore, the court conducting the trial/appeal is not only obliged to
protect the rights of the accused but also the rights of the victim, and the D
interest of the society at large. The Judge presiding over the criminal
trial has not only to see that innocent man is not punished but has also to
see that guilty man does not escape. Both are his public duties required
to be discharged very diligently to maintain the public confidence and
uphold the majesty of the law. E
Conclusion:
36. Having regard to the proved circumstances on record, more
particularly the circumstances that preceded and followed from the
point the deceased-victim was seen last together with the appellant-
accused, the court has no hesitation in holding that the prosecution had F
proved beyond reasonable doubt all the circumstances individually and
also proved the circumstances forming a chain, so conclusive as to
rule out the possibility of any other hypothesis except the guilt of the
appellant-accused. It was duly proved that while committing the barbaric
acts of rape and sexual assault on the young child-victim aged about G
04 years, the appellant-accused had inflicted bodily injuries as mentioned
in the post-mortem report which had caused her death. The court,
therefore, holds that the trial court had rightly convicted the appellant-
accused for the offences punishable under sections 302, 376(2)(i),
376(2)(m), 363, 366 of IPC and section 5(i) read with section 6 and
H
198 SUPREME COURT REPORTS [2022] 19 S.C.R.
A section 5(m) read with section 6 of the POCSO Act. The said order of
conviction was affirmed by the High Court; and is being further affirmed
by this Court.
37. The next question that falls for consideration is with regard to
the sentence to be imposed on the appellant. The trial court while imposing
B various sentences for the other offences, had imposed the death penalty
for the offence under Section 302 of IPC, which has been confirmed by
the High Court in the impugned judgment. It may be noted that since the
death of the victim was caused due to the injuries inflicted by the appellant
while committing offence under Section 376(2)(i) and 376(2)(m), the
provisions of Section 376A of the IPC would also get attracted which
C had come into force w.e.f. 03.02.2013 i.e.prior to the alleged incident in
question, and which provided for wide range of punishments upto death
penalty. The High Court in the impugned order, though made observation
in this regard, did not consider it on the ground that the charge under
Section 376 A of IPC was not framed by the Sessions Court against the
D accused. However, it may be noted that in view of Section 215 an omission
to state the offence or its particulars in the charge could not be regarded
as material, unless the accused was in fact misled by such error or
omission, and it had occasioned a failure of justice. In the instant case,
the accused was already charged for the offence under Section 302
which is punishable with death or life imprisonment, and was also charged
E for the offences under Section 376(2)(i) and 376(2)(m), as covered in
Section 376A, IPC, which is also punishable upto death sentence amongst
other lesser punishments. Hence, non-mentioning of Section 376A in the
charge could not be said to have misled the accused, nor any failure of
justice could be said to have occasioned.
F 38. It may be pertinent to note that this Court in terms of the law
laid down by the Constitution Bench in Bachan Singh Vs. State of
Punjab11, and in tune with the directions issued in the other similar matters,
touching upon the issues concerning the mitigating factors, had vide the
order dated 25.11.2021, directed the State authorities to produce on record
G the report of the probationer officer, if any and had directed the Director
General (Prison) of the State to place on record the reports from the
concerned jails/prisons where the appellant was or is presently lodged,
about his conduct and nature of work done by him while in the jail. The
court had also called for the psychiatric and psychological evolution
H 11
(1980) 2 SCC 684
MOHD. FIROZ v. STATE OF MADHYA PRADESH 199
[BELA M. TRIVEDI, J.]
reports of the appellant. The said authorities have submitted their A
respective reports before the court.
39. The learned Senior Advocate Mr. Marlapalle relying upon the
various decisions of this court would submit that in similar cases as the
present one, this Court, considering the mitigating circumstances has
commuted the sentence of death penalty to the life imprisonment. The B
case on hand could not be said to be the “rarest of rare case”, where the
question of awarding lesser punishment than the death penalty is totally
foreclosed. He implored the court to consider before imposing the
sentence upon the appellant, the documents produced on record after
the completion of the arguments, like the affidavits of the family members,
the jail documents and the social inquiry report of the appellant. C
40. As demonstrated earlier, once again one of the most barbaric
and ugly human faces has surfaced. A tiny bud like girl was smothered
by the appellant before she could blossom in this world. The monstrous
acts of the appellant suffocated the victim to such an extent that she had
no option but to leave this world. Once again, all the Constitutional D
guarantees have failed to protect the victim from the clutches of the
demonizing acts of the appellant. In the opinion of the Court, any sympathy
shown to the appellant would lead to miscarriage of justice. However, it
has been brought to the notice of this Court that in series of judgements,
this Court has not treated such case as the rarest of rare case. E
41. In case of Bachan Singh Vs. State of Punjab (supra), the
Constitution Bench while upholding the constitutional validity of the death
sentence held inter alia that the imposition of death penalty is required
to be guided by the paramount beacons of the legislative policy discernible
from sections 354 (3) and 235 (2) of the Cr.P.C., namely – (i) the extreme F
penalty can be inflicted only in the gravest cases of extreme culpability;
and (ii) in making the choice of the sentence. In addition to the circumstances
of the offence, due regard must be paid to the circumstances of the offender
also. In Machhi Singh vs. State of Punjab12, a three-judge bench of this
Court, after noting the principles laid down in Bachan Singh’s case
regarding the formula of “rarest of rare cases” for imposing the death G
sentence, observed that the guidelines indicated in Bachan Singh’s case
will have to be culled out and applied to the facts of each individual case
where the question of imposing death sentence arises.
12
(1983) 3 SCC 470 H
200 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 42. In the recent case of Shatrughna Baban Meshram Vs. State
of Maharashtra13, this courtconsidering catena of earlier decisions in
the light of section 302 read with section 376-A of IPC observed that as
against section 302 IPC, while dealing with the cases under section 376-
A IPC, a wider spectrum is available for consideration by the courts as
to the punishment to be awarded. In the said case, this Court negatived
B
the submission made on behalf of the appellant-accused that in the case
based on circumstantial evidence, the death sentence should be commuted
to the life imprisonment. However, considering the facts that the accused
had not consciously caused any injury with an intent to extinguish the life
of the victim, and that the offence in that case was under Clause Fourthly
C of Section 300 IPC, this Court had commuted the sentence of death
penalty to the life imprisonment. The facts and circumstances of the
case on hand are similar to the case of Shatrughna Baban Meshram
with one distinction in that, Section 376A of IPC being applicable in the
instant case.
D 43. Considering the above, we, while affirming the view taken by
the courts below with regard to the conviction of the appellant for the
offences charged against him, deem it proper to commute, and
accordingly commute the sentence of death for the sentence of
imprisonment for life, for the offence punishable under Section 302 IPC.
Since, Section 376A IPC is also applicable to the facts of the case,
E considering the gravity and seriousness of the offence, the sentence of
imprisonment for the remainder of appellant’s natural life would have
been an appropriate sentence, however, we are reminded of what Oscar
Wilde has said - “The only difference between the saint and the sinner is
that every saint has a past and every sinner has a future”. One of the
F basic principles of restorative justice as developed by this Court over the
years, also is to give an opportunity to the offender to repair the damage
caused, and to become a socially useful individual, when he is released
from the jail. The maximum punishment prescribed may not always be
the determinative factor for repairing the crippled psyche of the offender.
Hence, while balancing the scales of retributive justice and restorative
G justice, we deem it appropriate to impose upon the appellant-accused,
the sentence of imprisonment for a period of twenty years instead of
imprisonment for the remainder of his natural life for the offence under
section 376A, IPC. The conviction and sentence recorded by the courts
13
H (2021) 1 SCC 596
MOHD. FIROZ v. STATE OF MADHYA PRADESH 201
[BELA M. TRIVEDI, J.]
below for the other offences under IPC and POCSO Act are affirmed. A
It is needless to say that all the punishments imposed shall run
concurrently.
44. Before concluding, we would like to place on record our
gratitude and appreciation for the invaluable assistance provided and
services rendered by the learned Senior Advocate Mr. Marlapalle, B
appearing for the appellant-accused, appointed through the Supreme Court
Legal Services Committee.
45. The appeal stands allowed to the aforesaid extent.
Ankit Gyan and Anurag Bhaskar Appeal partly allowed.
C
(Assisted by : Adnan Khan, LCRA)
D
E
F
G
H
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