Appeal
2. Vide judgment of conviction and order of sentence dated 14th March, 2014 and 19th March, 2014, passed by the learned Additional Sessions Judge, Court No. 13, Lucknow, in Sessions Case No. 61 of 2013, the accused-appellants were convicted for the offences punishable under Sections 376(2)(g), 201 and 302 of Indian Penal Code, 18602 and were sentenced in the terms below:
“ …… “
3. The trial Court made a reference to the High Court of Judicature at Allahabad6 for confirmation of the death sentence awarded to accused No.1- Putai under Section 366 of the Code of Criminal Procedure, 1973. The accused-appellants also preferred separate appeals8 for assailing their conviction and the sentences awarded to them by the trial Court. The High Court answered the death reference in the affirmative, confirming the death penalty awarded to accused No.1-Putai and dismissed the appeals against conviction preferred by the accused-appellants vide judgment dated 11th October, 2018, which is subject matter of challenge in these appeals by special leave.
Brief facts
4. The facts in nutshell necessary and essential for disposal of these appeals are noted hereinbelow.
5. Mst. S, minor daughter9 (aged about 12 years) of Munna (PW-1) and Smt. Chandravati (PW-2) had gone out to attend the call of nature in the late evening of 4th September, 2012. When the girl did not return, the parents got alarmed and a search operation was launched, but to no avail.
6. In the morning of 5th September, 2012, the child victim’s chappals, water canister, underwear and blood stains were seen spread around in Bhaktisharan’s field which was under cultivation of accused No.1-Putai. The denuded dead body of the child victim was found lying amidst the rice crop growing in Harikrishna Sharma’s field. Munna (PW1), the father of the child victim submitted a complaint10 to the Inspector of Police on 5th September, 2012 at around 08:30 AM alleging that some unknown persons had committed rape and thereafter, murdered his minor daughter. Based on the same, an FIR bearing Case Crime No. 318 of 201211 came to be registered at Police Station Mohanlalganj, Lucknow for the offences punishable under Sections 302, 201 and 376 of IPC.
9. The prosecution claims that the dog squad was called to the place of occurrence. The sniffer dog sniffed the small male comb and led the police team to the house of accused No. 2-Dileep.
10. The inquest report of the dead body of the child victim was prepared15 which was then subjected to post mortem by a Medical Board of which, Dr. Geeta Chaudhary (PW-7), Dr. Akhilesh Chandra (PW-8) and Dr. Anant Prakash Mishra were members.
11. The medical board conducted autopsy and issued the postmortem reports opining that the child victim had been subjected to grave violence and sexual assault and died as a result of asphyxia due to strangulation. As many as nine ante mortem injuries were noticed on the child victim’s body including numerous on her nether regions.
12. From the statements of various witnesses examined by the Investigating Officer (PW-9), the needle of suspicion turned towards the accused/appellants who were arrested on 7th September, 2012. However, it may be noted that the prosecution did not exhibit the arrest memos of the accused-appellants.
13. The prosecution claims that the blood samples of the accused-appellants were collected under orders of the Court on 26th November, 2012 for the purpose of DNA comparison. The DNA report was received as per which, the comparison did not yield any conclusive results. After conclusion of investigation, chargesheet was laid against the accused-appellants for the offences punishable under Sections 376(2)(g), 201 and 302 IPC. The offences being sessions triable, the case was committed and made over to the Court of Additional Sessions Judge, Court No. 13, Lucknow, for trial where charges were framed for the above offences against the accused-appellants, who abjured their guilt and claimed trial.
14. The prosecution examined as many as 12 witnesses, exhibited 17 documents and 5 material objects to prove its case. The team leader of the dog squad, namely, Tribhuvan Narayan Jaiswal was examined as Court Witness No.1. Statements of the accused-appellants were recorded under Section 313 CrPC, and they were confronted with the allegations as appearing against them in the prosecution case. They denied the same and claimed to be innocent. Three witnesses were examined in defence.
15. Upon hearing the arguments advanced by the Public Prosecutor and the defence counsel and after appreciating the evidence on record, the trial Court proceeded to convict and sentence the accused/appellants as stated supra. The reference for confirmation of the death sentence awarded to accused No.1-Putai by the trial Court was answered in affirmative by the High Court, whereas the appeals preferred by the accused-appellants were rejected vide common judgment dated 11th October, 2018, passed by the High Court which is assailed in these appeals by special leave.
Analysis
24. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgments and material placed on record.
25. The following facts are admitted from the record: –
i. The child victim went missing on 4th September, 2012 at around 07:00 PM. She had gone out for attending the call of nature and was not found alive thereafter.
ii. The parents and neighbours conducted a search for the child victim throughout the night, but no clue was forthcoming regarding her whereabouts.
iii. As per the FIR19, the denuded dead body of the child victim was found in the field of Harikrishna Sharma whereas, some of her personal articles i.e., chappals, water canister and underwear were found in the field of Bhaktisharan. The report is silent regarding any suspicious act/conduct of the accused-appellants which may have been noticed or perceived by any of the prosecution witnesses. Rather, the report does not cast suspicion on anyone.
iv. Both the accused-appellants were arrested on 7th September, 2012 and their blood samples were drawn on 26th November, 2012, i.e., after a gap of almost two and a half months.
v. The first DNA examination report dated 18th January, 2014 i.e., Exhibit K-14, remained inconclusive. The prosecution produced a supplementary DNA report dated 2nd December, 2014 during pendency of the appeals before the High Court by way of an affidavit dated 12th April, 2017. However, notably, the first DNA report was totally silent regarding any pending tests or the requirement for re-examination of the samples. The supplementary DNA report was not put to the accused-appellants, and they were denied opportunity to rebut the same.
vi. The prosecution did not examine the carrier who transmitted the samples from the police station to the FSL. Not a single document pertaining to safe keeping or transmission of the samples viz. maalkhana register, roznamcha entry, forwarding letter or the receipt issued from the FSL was exhibited or brought on record by the prosecution during the course of the trial.
Exaggeration/improvement from her previous statement under section 161 crpc cannot be considered to be an incriminating circumstance against accused
32. Be that as it may, we find that this version as set out in the evidence of Smt. Chandravati (PW-2) that accused No.1-Putai came rushing and he went inside his house, and changed the clothes, in addition to being an exaggeration/improvement from her previous statement under Section 161 CrPC cannot be considered to be an incriminating circumstance against accused No.1-Putai in isolation.
34. To reiterate, there was nothing unusual in the conduct of accused No.1-Putai if he entered into his own house, even in haste, washed his face and hands and then, went away.
Accused defence is that he was with his parents at the time of the incident
35. Accused No. 1-Putai has given an explanation in his Section 313 CrPC statement that his parents were ill and were hospitalized on the date of the incident. This fact was admitted by Smt. Chandravati (PW-2) in her cross-examination. The accused has taken a specific defence that he was with his parents at the time of the incident. In this background, the fact that accused No.1-Putai was seen by Smt. Chandravati (PW-2) rushing into his house, changing clothes and going away cannot be treated to be a suspicious conduct or a fact which inculpates him in the crime.
Sniffer dog led the police team to accused 2 after sniffing the comb
36. So far as the accused No. 2-Dileep is concerned, Smt. Chandravati (PW-2) admitted in her cross-examination that accused No. 2-Dileep’s house is at a significant distance from her house. The theory set forth by the prosecution, that the comb used by accused No. 2-Dileep was recovered from the field of Harikrishna Sharma, and that the sniffer dog, after sniffing the said comb, led the police team to the house of the accused No. 2-Dileep is also shrouded in a cloud of doubt and unacceptable on the face of record and we have strong reasons for observing so.
Contradiction regarding the colour of the comb
37. Firstly, there is a significant contradiction regarding the colour of the comb which was recovered by the police. Munna (PW-1) stated that the comb was of bluish-green color. Gaya Prasad (PW-3) stated that the comb was dirty and light red coloured. Raushan Lal (PW-5) stated that the comb was of sky-blue color. Narad Muni Singh (PW-9) stated that the comb was of green colour. These contrasting versions of the witnesses regarding the colour of the comb make the recovery by itself doubtful.
There was no special feature in the recovered comb which was an ordinary plastic comb
38. Secondly, the theory put forth in the evidence of the prosecution witnesses that they had seen accused No. 2-Dileep using the comb and thus they could identify and link the recovered comb to him is absolutely farfetched and unbelievable. Admittedly, there was no special feature in the recovered comb which was an ordinary plastic comb. Thousands of combs of similar design and colour are readily available in the market. Thus, it is impossible to believe that any person could identify the comb to be that of accused No. 2-Dileep simply on seeing him using the same. The emphatic version of the witnesses that the comb belonged to accused No. 2- Dileep is a strong indicator of the fact that the prosecution was hell bent upon implicating the accused No. 2-Dileep in this case by hook or by crook.
Total omission of fact that underwear of the child victim had already been noticed in the same field
42. What can be culled out from the evidence of this witness is that the incriminating articles which were recovered from the field of accused No. 1-Putai, had already been seen by the search party before the police arrived at the spot. The said fact assumes importance when we see the complaint (Exhibit K-1) wherein, all that is mentioned is that the chappals and water canister of the child victim and some blood stains were seen in the field of Bhaktisharan which was under cultivation of accused No. 1-Putai. There is a total omission of the fact that the underwear of the child victim and other incriminating articles had already been noticed in the same field.
Contradiction goes to the root of the matter and makes the testimony of the witness highly doubtful
45. The statement of this witness (PW-4) is hardly of any relevance to the prosecution case. The simple act of asking for a spade by accused No. 2-Dileep cannot be construed to be incriminating in nature. Furthermore, there is a material contradiction in the deposition of the said witness since during the examination-in-chief, the witness stated that he did not give the spade to accused No. 2-Dileep, but in cross-examination, he stated that he gave the fawda (garden spade) to accused No. 2-Dileep which he never received back. This contradiction goes to the root of the matter and makes the testimony of the witness (PW-4) highly doubtful.
49. Dr. Geeta Chaudhary (PW-7), being the medical jurist proved the postmortem report (Exhibit K-5 and K-6). However, she did not give any opinion regarding the cause of death of the child victim. A very important fact which emerges from the evidence of the medical jurist is that she claimed to have taken two vaginal swabs and two vaginal smear slides, which were sent for examination of spermatozoa and gonococci. The significant fact which needs to be noted is that the witness (PW-7) did not state that the vaginal swabs and the slides were sealed. She did not even mention the date on which these vital forensic materials were handed over for onward transmission.
Opinion that the cause of death of the child victim was cardiorespiratory arrest due to asphyxia on account of ante mortem strangulation
50. Dr. Akhilesh Chandra (PW-8), was one of the members of the medical board which conducted the postmortem examination upon the dead body of the child victim. He stated that the body was brought for postmortem examination by Constable Sunil Singh and Constable Krishna Kumar Dwivedi posted at the Police Station Mohanlalganj. The autopsy was carried out at about 04:15 PM and Dr. Anant Prakash Mishra and Dr. Geeta Chaudhary (PW-7) were the other members of the medical board who took part in the postmortem examination. The medical jurist proved the presence of nine ante mortem injuries on the private parts and other body parts of the child victim. He also gave an opinion that the cause of death of the child victim was cardiorespiratory arrest due to asphyxia on account of ante mortem strangulation.
PW.8 though stated that he collected part of scalp hair with skin for DNA but not a single document pertaining this procedure was proved
51. The witness (PW-8) stated that he collected part of scalp hair with skin for DNA, a piece of sternum bone and eight slides of smear and swabs. He went on to state that these articles were seized, sealed, and handed over to Constable Sunil Singh and Constable Krishna Kumar Dwivedi along with the specimen of seal and other police papers.
52. However, not a single document pertaining to this procedure was proved by the witness (PW-8), nor was any memorandum of sealing or handing over of the forensic material exhibited during his evidence or in the evidence of any other prosecution witness. Hence, the entire procedure of collecting forensic samples becomes doubtful.
Though personal articles of the child victim i.e., the frock and the underwear were seized never forwarded to the FSL
56. A very important fact which emerges from the evidence of Narad Muni Singh (PW-9) is that the personal articles of the child victim, i.e., the frock and the underwear which he seized were never forwarded to the FSL. It is indeed surprising that in a case of such grave nature, the Investigating Officer (PW-9) did not care to forward these crucial articles to the FSL. The scientific analysis of these articles might have provided vital evidence for proving the guilt of the accused-appellants or otherwise. The very fact that the Investigating Officer (PW-9) did not consider it essential to send the articles to the FSL gives rise to a strong suspicion that the recovery of these articles was a planted recovery.
Witness did not state on which date the blood samples of the accused were collected
60. The most important fact which is seen from the evidence of this witness is that neither he gave out the date on which the blood samples of the accused/appellants were actually collected, nor did he prove any document prepared for carrying out this procedure. Further, it is pertinent to mention that the consent of the accused-appellants was purportedly taken before the drawing of the blood samples, but no document proving such consent, was exhibited in evidence. Hence, we have no hesitation in holding that the prosecution has failed to prove the relevant documentation which should have mandatorily been prepared before collection of the blood samples of the accused-appellants for DNA comparison. Failure to do so makes the entire exercise of collection of the blood samples, farce and frivolous.
Supplementary DNA report was rejected on the presumption that the specimen samples must have been consumed when the first report was prepared
63. Furthermore, the witness (PW-12) did not state in her evidence that any forensic material was preserved for further examination. Surprisingly during the pendency of the appeal before the High Court, the prosecution placed a supplementary DNA report dated 2nd December, 2014 on record. We are of the view that there was hardly any possibility of any such supplementary DNA report being prepared because in absence of evidence to the contrary, it can be safely be presumed that the specimen samples must have been consumed when the first report, i.e., Exhibit K-14 was prepared. In any event, once the samples were already opened, their sanctity would no longer be secured/preserved for any further analysis.
Points that makes the DNA reports totally inadmissible in evidence
65. We find the following crucial flaws in the prosecution case which make the DNA reports totally inadmissible in evidence: –
(i) The prosecution failed to lead any evidence whatsoever so as to prove the procedure, date or time of drawing the blood samples of the accused-appellants for the purpose of conducting the DNA comparison. Neither any oral evidence was led to prove this procedure, nor did the prosecution exhibit any document to fortify the same. There is a total lack of evidence regarding the chain of custody of these blood samples.
(ii) As discussed above, there is a grave discrepancy in the evidence of the two medical jurists, i.e., Dr. Geeta Chaudhary (PW-7) and Dr. Akhilesh Chandra (PW-8) regarding the number of slides prepared for DNA examination, when the postmortem examination was conducted. On the one hand, Dr. Geeta Chaudhary (PW-7) stated that she took two vaginal swabs and two vaginal smear slides, whereas, on the other hand, Dr. Akhilesh Chandra (PW-8) stated that he took eight slides of smear and swabs.
(iii) No witness was examined by the prosecution to establish the complete unbroken chain of safe custody of the samples which were purportedly seized/drawn, preserved and then forwarded to scientific experts for DNA comparison.
(iv) Neither the malkhana In-charge of the Police Station Mohanlalganj was examined in evidence nor did the prosecution care to examine the official/s who carried the samples to the FSL.
(v) Not a single document pertaining to the transmission of the samples to the FSL was exhibited by the prosecution in its evidence and hence, the DNA report (Exhibit K-14) which is otherwise also inconclusive, cannot be read in evidence.
Supplementary DNA report was not put to the accused under section 313 Cr.P.C
66. The supplementary DNA report dated 2nd December, 2014, which was produced during pendency of the appeals before the High Court is also inconsequential and inadmissible because neither did the prosecution bother to recall the scientific expert, Dr. Archana Tripathy (PW-12) to prove this report nor was this report put to the accused-appellants by way of supplementary questioning under Section 313 CrPC. That apart, we have already taken note of the fact that the forensic samples had already been opened/consumed when the first DNA report (Exhibit K-14) was prepared and thus, the sanctity thereof was breached. Hence, there was no possibility whatsoever for preparation of a supplementary DNA report.
Contradictions between first and supplementary DNA reports
67. As is apparent, the conclusions in the first DNA report and the supplementary DNA report are in stark contradiction. Hence, it was essential for the prosecution to summon the expert concerned for reconciling the grave discrepancy in the two DNA reports. Having failed to do so, the prosecution cannot be permitted to place reliance on the subsequent DNA report to the prejudice of the accused-appellants.
Material objects of the victim were not shown to the parents
68. The material objects including the clothes of the child victim were exhibited in the evidence of Narad Muni Singh (PW-9), but the same were not shown to the parents, i.e., Munna (PW-1) and Chandravati (PW-2) for identification when they stepped into the witness box. Hence, a doubt is created as to whether the articles so recovered were actually of the child victim or not. The prosecution has given no explanation whatsoever as to why the clothes of the child victim were not forwarded to the FSL for forensic examination.
Since the material objects were found in open place prosecution has to rule out the possibility of planting the same by any other person other than the accused
69. Even if it is assumed that some of these material objects were found in the field of the accused No.1-Putai, that by itself cannot be considered to be an incriminating circumstance so strong that even taken in isolation, the same would prove the guilt of the accused No.1-Putai beyond reasonable doubt. The distance between ‘may be proved’ and ‘must be proved’ is small but has to be travelled before the prosecution can seek conviction of the accused in a case based purely on circumstantial evidence. The fields where the material objects allegedly belonging to the child victim and her dead body were found is open and accessible to all and sundry and hence, the prosecution would have to rule out the possibility of anyone other than the accused-appellants having committed the ghastly act for it to succeed and to bring home the charges against the said accused persons.
I.O’s failure to search the appellant house adds suspicion regarding the credibility of I.O’s actions
72. Furthermore, had there been any substance in the aforesaid allegation, then the Investigating Officers would have definitely made an extensive search of the house of the accused-appellants to search for incriminating evidence. Evidently, no such effort was made by the Investigating Officers, which again establishes that the theory put forth in the evidence of Smt. Chandravati (PW-2) is an exaggeration and nothing beyond that. The failure of the Investigating Officers to search the house of the accused-appellants is another circumstance which adds to our suspicion regarding the credibility of the Investigating Officer’s actions, more particularly, in respect of the alleged recoveries.
Since no document pertaining to the blood samples from accused was produced thereby rendering the DNA reports to be a piece of trash paper
75. At the cost of repetition, it may be mentioned that no document pertaining to collection of the blood samples from the accused-appellants was produced and exhibited in evidence, thereby, rendering the DNA reports to be a piece of trash paper. The prosecution failed to lead any credible evidence for proving the chain of custody of the forensic samples allegedly collected during investigation and hence on this ground alone, the DNA reports pale into insignificance. The first DNA report was inconclusive, and supplementary DNA report dated 2nd December, 2014 was tendered in evidence by the prosecution during the pendency of appeals before the High Court along with an affidavit dated 12th April, 2017 of one Rajiv Paliwal, then Deputy Director, FSL, Lucknow. We may note that Rajiv Paliwal was not connected with the issuance of the DNA report in any manner and hence, he could not have been the relevant witness to prove the same. That apart, the DNA report could not have been proved through an affidavit. Section 293 of CrPC (Section 329 of BNSS, 202322) makes it amply clear that only evidence of formal nature can be given on affidavits. The DNA report is substantive piece of evidence and hence, the same could not have been tendered in evidence through an affidavit and that too of an officer who was not connected with the procedure in any manner.
Conclusion
77. In conclusion, we have no hesitation in holding that other than the allegation that the child victim’s chappals, underwear and the water canister were found in the field which was cultivated by accused No. 1-Putai, the prosecution has failed to lead any credible evidence whatsoever which can be considered to be incriminating the accused/appellants for the crime in question, what to say, of evidence which is capable of proving the guilt of the accused-appellants beyond all manner of doubt.
78. We are conscious that the case involves a gruesome act of rape and brutal murder of a tender girl child aged 12 years. However, it is a settled tenet of criminal jurisprudence that in a case based purely on circumstantial evidence, the prosecution must prove its case beyond reasonable doubt. The incriminating circumstances must be such which point exclusively to the guilt of the accused and are inconsistent with his innocence or the guilt of anyone else.
79. Having considered and analyzed the evidence available on record minutely, we feel that the prosecution has fallen woefully short of proving the guilt of the accused-appellants by clinching evidence which can be termed as proving the case beyond all manner of doubt.
80. Hence, we are left with no option but to acquit the appellants by giving them the benefit of doubt.
Judgments involved or cited
* Judgment of conviction and order of sentence dated March 14, 2014, and March 19, 2014, passed by the learned Additional Sessions Judge, Court No. 13, Lucknow, in Sessions Case No. 61 of 2013.
* Judgment dated October 11, 2018, passed by the High Court of Judicature at Allahabad, which confirmed the death penalty for accused No.1-Putai and dismissed the appeals against conviction by the accused-appellants. This judgment is the subject of the current appeals by special leave.
Sections and Acts
Indian Penal Code, 1860 (IPC)
* Sections 376(2)(g) (rape)
* Section 201 (causing disappearance of evidence of offence, or giving false information to screen offender)
* Section 302 (punishment for murder)
Code of Criminal Procedure, 1973 (CrPC)
* Section 366 (submission of death sentence for confirmation)
* Section 161 (examination of witnesses by police)
* Section 313 (power to examine the accused)
Indian Evidence Act, 1872
* Section 106 (burden of proving fact especially within knowledge)
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023)
* Section 329 (corresponds to Section 293 of CrPC)
Party
Putai versus State of Uttar Pradesh – Criminal Appeal No(s). 36-37 of 2019 and Criminal Appeal No(s). 154 of 2025 – 2025 INSC 1042 – August 26, 2025 by Hon’ble Mr. Justice Vikram Nath Hon’ble Mr. Justice Sanjay Karol and Hon’ble Mr. Justice Sandeep Mehta.
