Statement of the victim (deceased) to her mother and the mother repeats the same in her testimony (deposition) is admissible in evidence as dying declaration

The prosecution alleged prolonged sexual abuse of a minor step-child inside the house and later throttling her to prevent disclosure of rape. Conviction rested on mother ocular account as only household eyewitness, supported by autopsy showing throttling and fresh genital injury, plus corroborative and forensic material. Courts below treated mother as natural truthful witness and awarded and confirmed death. Supreme Court maintained conviction but held mitigation was genuine and reform not ruled out by State, hence substituted death with life till natural end without remission.

By
Ramprakash Rajagopal
death
Contents

Taking cognizance is on offence and not of section and that mention or omission of a particular provision is not crucial and it is the duty of the court to apply correct provisions

Waris Vs State of Madhya Pradesh – Criminal Appeal Nos 429-430 of 2020 – 2026 INSC 1050 – 24th September 2026 – Hon’ble Mr. Justice Vikram Nath, Hon’ble Mr. Justice Sandeep Mehta, Hon’ble Mr. Justice Vijay Bishnoi [3 Judge Bench]

https://www.sci.gov.in/view-pdf/?diary_no=74312020&type=j&order_date=2026-09-24&from=latest_judgements_order

1) Appellant and impugned order challenged

The appeals are preferred by the convict Waris against the final judgment dated 18.11.2019 of the High Court of Madhya Pradesh, Indore Bench in Criminal Reference No 1 of 2019 and Criminal Appeal No 1854 of 2019, which affirmed his conviction and confirmed the death sentence awarded on 17.12.2018 by the Second Additional Sessions Judge and Special Judge, POCSO, Jaora in Special Case No 3 of 2018, and the present hearing also considers the effect of curative further cross-examination of PW-1 directed by this Court on 08.05.2025. [Para 1, 2, 3, 11, 13]

2) Factual matrix

As per prosecution, mother of victim, earlier widowed from Shakeel with four children, returned to Jaora with victim aged about five years and married appellant on 04.08.2017 at Kushalgarh. After initial cordiality appellant started ill-treating and sexually abusing victim, threatening mother and restricting her movement. On night of 21.04.2018 he assaulted child after confining mother, child became restless and vomited, on 22.04.2018 again assaulted and denied treatment, on 23.04.2018 morning mother called him at 09:20:30 and 09:21:24 hrs as per CDR, appellant came at noon, asked if child had disclosed, then throttled her with both hands leading to death, thereafter took body to private doctors who declared dead, attempted immediate burial at Kushalgarh but on mother insistence brought to Civil Hospital Jaora, post-mortem on 24.04.2018 recorded asphyxia due to throttling and fresh tear at fourchette with bleeding indicating sexual assault. [Para 6, 6.1 to 6.5] Appellant sexually assaulted the child and thereafter throttled her to death is the case.

3) Lower courts verdicts

The Trial Court framed charges on 02.07.2018 under Sections 376(2)(f), 376(2)(i), 376(2)(n), 376AB, 302, 201 IPC and 5 and 6 POCSO, examined 24 witnesses including PW-1 mother, PW-6 autopsy surgeon and PW-24 IO, recorded statement under Section 313 CrPC where appellant pleaded false implication at instance of PW-4 and alibi of being at Khodana, examined DW-1 to DW-3, accepted mother as natural truthful witness corroborated by medical, forensic and conduct evidence, rejected alibi and false implication, convicted for 376(2)(f), 376(2)(n), 376AB, 302, 201 IPC and 5,6 POCSO acquitting for 376(2)(i) and imposed death for 376AB and 302 on 17.12.2018. The High Court in Reference No 1/2019 and Appeal No 1854/2019 by judgment dated 18.11.2019 rejected plea of ineffective legal aid though counsel was appointed on 16.07.2018 itself and PW-1 chief and cross completed same day, reappreciated evidence, held mother reliable, guilt beyond reasonable doubt and case rarest of rare, confirmed death and dismissed appeal. [Para 7, 10, 11, 12]

For appellant, Senior Counsel Mr C U Singh contended conviction depends solely on PW-1 mother who introduced material facts first time in Court absent in 161 and 164 statements, suffers internal contradictions, unnatural conduct, delay, mobile access and conflict with PW-4, and that curative cross on 14.06.2025 shows her as entrapped witness, plus defects in investigation and CDR, and on sentence argued not rarest of rare relying on childhood deprivation, no criminal antecedents, satisfactory jail conduct for about eight years, family ties and no State material to prove beyond reformation, seeking remainder of life sentence. For State, it was argued core of PW-1 stood unshaken even after two cross-examinations including full day curative exercise with witness protection and counselling by Senior Public Prosecutor, corroborated by medical opinion of homicidal throttling and sexual injury, victim disclosure, CDR, extra-judicial confession and appellant conduct of hurried burial, plea of alibi and threat by police of opium husk case rightly rejected, and instrumental silencing i.e. murder to extinguish evidence of rape is highest aggravating factor warranting death. [Para 18, 18.1, 18.2, 19]

5) Ratio Decidendi

The Court reaffirmed that even when crime is at extreme end with exceptional aggravating feature of instrumental silencing which compounds murder with assault on administration of justice, gravity alone never justifies death, Bachan Singh and Machhi Singh require genuine weighing of mitigating circumstances relating to criminal without demanding causal link to crime, burden to prove beyond reformation and continuing threat lies on State and medical board finding of no psychopathology does not discharge it, disposition to violence is not beyond reformation, denial of guilt and false defence cannot be taken as aggravating, prison conduct in controlled setting not complete measure but eight years satisfactory conduct without misconduct and inclination to self-improvement favours reform possibility, when reform possibility not excluded life alternative not unquestionably foreclosed, hence death unsustainable, yet ordinary life with remission after fourteen years wholly inadequate for sustained violation of child by guardian and killing to conceal it, so intermediate sentence of imprisonment for remainder of natural life without remission under Sriharan, second only to death, is proportionate. [Para 182 to 204]

Important paragraphs
PART VI – THE POINTS FOR DETERMINATION

20. Having heard learned counsel for the parties at length and having perused the entire record, we are of the view that the following points arise for the determination of this Court on the question of conviction.

i) Whether the infirmity attending the recording of the evidence of the mother of the victim as PW-1 on 16.07.2018 stands cured by the further cross-examination conducted pursuant to the order of this Court dated 08.05.2025, and what is the effect of the said exercise upon the appreciation of her evidence?

ii) Whether the testimony of the mother of the victim is reliable and is sufficient, read with the corroborative material on record, to sustain the conviction of the appellant, notwithstanding the omissions, the improvements, the contradictions and the conduct attributed to her?

iii) Whether the death of the victim is established to be homicidal and is attributable to the appellant?

iv) Whether the offence of aggravated penetrative sexual assault upon the victim, a child below twelve years of age, is established against the appellant?

v) Whether the plea of alibi set up by the appellant and the version of events put forth in his defence are established or are shown to be reasonably probable?

vi) Whether the defects and the alleged mala fides in the investigation are of such a character as to vitiate the prosecution case?

vii) Whether, on a consideration of the entire evidence, the offences under Sections 302, 376(2)(f), 376(2)(n), 376AB and 201 of the IPC and Sections 5 and 6 of the POCSO Act are established against the appellant?

PART VII – ANALYSIS

22. Before we embark upon the analysis, it is convenient to indicate the sequence in which we propose to proceed, for the questions are interconnected and the order of their consideration is deliberate. Having answered at the threshold the question concerning the curative exercise, we shall set out the principles governing the appreciation of the evidence, and shall then take up the objective medical evidence, which establishes the substratum of the offence independently of any oral account. It is against that substratum that we shall examine the ocular testimony of the mother of the victim and the attacks mounted upon her credibility, and we shall thereafter consider the disclosure made by the victim, the corroborative evidence, and the scientific evidence, before turning to the defence of the appellant and the alleged infirmities in the investigation, and finally recording our conclusions upon the offences and the complete picture that emerges.

SECTION A – THE CURATIVE FURTHER CROSSEXAMINATION AND THE RIGHT TO A FAIR TRIAL

23. The first question is whether the infirmity attending the original cross-examination of PW-1 has been remedied by the further cross-examination conducted pursuant to the order of this Court dated 08.05.2025. The concern arose because PW-1, the principal prosecution witness, had been examined and cross-examined on 16.07.2018 by a legal aid counsel appointed on the very same day, without any real opportunity to prepare. In a capital case, such a course plainly fell short of the standard of effective legal assistance and meaningful cross-examination guaranteed by Article 21.

Sections 391 and 367 Cr.P.C empower the appellate court dealing with death reference to take or direct further evidence

24. The defect, however, was confined to the cross-examination of one witness, though an important one. It did not infect the entire trial. Sections 391 and 367 of the CrPC empower the appellate court, and the court dealing with a death reference, to take or direct the taking of further evidence where it is necessary for a just decision. The course adopted by this Court, namely directing the further cross-examination of PW-1 with adequate protection to the witness and full access to the record to the defence, was therefore a proportionate cure rather than a retrial.

25. The further cross-examination was conducted on 14.06.2025 before the Special Judge under the POCSO Act. The appellant was represented by counsel of his choice, the complete record had been made available in advance, and the witness was cross-examined at length on every material aspect, including the omissions and contradictions now pressed before us. The prosecution was given an opportunity of re-examination but did not avail it. No specific line of cross-examination that remained unavailable, nor any concrete residual prejudice, has been demonstrated.

Defects in original cross-examination is adequately remedied by further cross-examination

26. We therefore hold that the defect in the original cross-examination has been adequately remedied. The evidence of PW-1 must now be appreciated by reading together her deposition dated 16.07.2018 and her further cross-examination dated 14.06.2025, with due allowance for the passage of time between the occurrence and the further examination.

SECTION B THE PRINCIPLES OF APPRECIATION

27. Since the prosecution rests its case in large measure upon the testimony of the mother of the victim, and since her evidence has been assailed on the grounds of omissions, improvements, contradictions and conduct, it is necessary to set out the principles by which the evidence of such a witness is to be appreciated, before we apply those principles to the evidence on record.

Section 134 IEA: Law does not require multiple witnesses to prove the case solitary/single testimony is enough to prove the case

28. The first principle concerns the sufficiency of a solitary witness. It is not the law that the testimony of a single witness, howsoever reliable, must be discarded for want of a plurality of witnesses. Section 134 of the Indian Evidence Act, 1872 provides in unequivocal terms that no particular number of witnesses shall in any case be required for the proof of any fact. The provision reads as follows:

“134. Number of witnesses. – No particular number of witnesses shall in any case be required for the proof of any fact.”

The principle enshrined in the said provision is that evidence is to be weighed and not counted, and that the conviction of an accused may rest upon the testimony of a single witness if that testimony is found to be reliable and inspires confidence. This Court, as early as in Vadivelu Thevar v. State of Madras, held that a court may act upon the testimony of a single witness though uncorroborated, and that if the testimony of a solitary witness is wholly reliable, a conviction may be founded upon it. We are conscious, at the same time, that where the solitary witness is closely related to the deceased and to the accused, and where her evidence has been the subject of a searching attack, the prudent course is to seek corroboration in the material particulars of her account. We do not, therefore, approach the evidence of the mother of the victim on the footing that she is a witness of such flawless quality that her word must be accepted without more. We approach her evidence on the footing that if the core of her account is found to be reliable and is corroborated in its material particulars by the other evidence on record, it may safely be acted upon, and it is by that standard, and no lower one, that we have tested her testimony.

29. The second principle concerns the character of a related witness. It was faintly suggested by the appellant that the mother of the victim, being the wife of the appellant, was an interested witness whose evidence must be viewed with suspicion. The suggestion proceeds upon a confusion between a related witness and an interested witness, which this Court has repeatedly cautioned against. A related witness is one who is connected by blood or by marriage to the victim or to the accused, whereas an interested witness is one who has a motive to see the accused convicted for reasons other than the vindication of the truth, such as a pre-existing enmity or an expectation of gain. The two are not the same, and the evidence of a related witness cannot be discarded merely on the ground of relationship. This Court held in Dalip Singh v. State of Punjab, that a witness is normally to be considered independent unless he springs from sources which are likely to be tainted, and that a relation would not conceal the actual culprit and make allegations against an innocent person in order to wreak vengeance, but would ordinarily be the last to screen the real offender. The distinction was reaffirmed by this Court in State of Rajasthan v. Kalki, and in Goverdhan v. State of Chhattisgarh, wherein it was explained that the related witness is not necessarily an interested witness, and that the evidence of a related witness, if found to be reliable, requires no corroboration and may be acted upon.

Wife gives evidence against her husband

30. These principles acquire a particular force in the present case. The witness who has deposed against the appellant is not a stranger who might harbour some ulterior design against him. She is his wife, and she is the mother of the child who was the victim of the crime. A woman in her position, in deposing to the rape and the murder of her own child, does not merely give evidence against a stranger. She testifies against her own husband, and in doing so she renounces her marriage, forfeits the shelter and the maintenance that the marriage afforded her, exposes herself to the hostility of the family into which she married, and courts the social opprobrium that in the milieu to which she belongs attaches to a woman who breaks her home. That she was willing to endure all of this in order to accuse the appellant powerfully attests to her credibility. A mother is, in the considered view of this Court, ordinarily the last person who would shield the murderer of her own child and substitute an innocent man in his place.

31. The third principle concerns the appreciation of evidence in cases of sexual offences and of crimes committed within the privacy of the home. Offences of this nature are seldom committed in the presence of witnesses. The sexual abuse of a child within the household, in particular, is perpetrated in secrecy and in stealth, and the persons ordinarily present are the perpetrator, the child and, if at all, a member of the household who is powerless to prevent it. To insist, in such cases, upon the kind of corroboration that might be available in a crime committed in the open would be to insist upon a standard that the very nature of the offence renders impossible of attainment, and would be to grant to those who prey upon children within the home an immunity founded upon the secrecy in which they cloak their crime. This Court, in State of Punjab v. Gurmit Singh, deprecated the tendency to view the evidence of the prosecutrix in a sexual offence with suspicion, and held that such evidence is to be appreciated with sensitivity and realism, and that minor contradictions or insignificant discrepancies which do not touch the core of the prosecution case ought not to be a ground for throwing out an otherwise reliable case. The same sensitivity governs the appreciation of the evidence of the mother of a child victim, who is often the only person in a position to speak to what was done to the child behind the closed doors of the home.

32. The fourth principle concerns the treatment of a witness whose evidence is found to be partly acceptable and partly not. The appellant’s submission, reduced to its essence, is that because the mother of the victim omitted certain facts from her earliest statements and introduced others for the first time in court, her testimony must be rejected in its entirety. That submission invokes, in substance, the maxim falsus in uno, falsus in omnibus, that is, false in one thing, false in everything. It is well settled that the said maxim is not a rule of law in India, and is at best a rule of caution. The duty of the court is not to reject the whole of a witness’s evidence upon finding a part of it to be unacceptable, but to sift the truth from the falsehood, to separate the grain from the chaff, and to act upon that part of the evidence which it finds to be reliable after a careful scrutiny, provided that the acceptable part can be safely separated from the rest and is corroborated by the other evidence on record. This Court, in State of U.P. υ. Μ.Κ. Anthony, held that the evidence of a witness must be read as a whole and in the context of the case, that minor discrepancies on trivial matters not touching the core do not corrode the credibility of an otherwise reliable witness, and that a rustic or an illiterate witness cannot be judged by the standards of precision expected of an educated one. These principles have been consistently reiterated, including in the recent decisions of this Court in Selvamani v. State of T.N., and in Goverdhan v. State of Chhattisgarh, wherein it has been reaffirmed that even where omissions, contradictions and discrepancies exist, the whole of the evidence is not to be discarded, and the court must sift the reliable from the embellished and determine whether the residue establishes the guilt of the accused.

SECTION C- THE OBJECTIVE SUBSTRATUM: THE MEDICAL EVIDENCE
Medical evidence of a professional witness had no interest in the outcome of the case

33. Having set out the principles that govern the appreciation of the evidence, we now turn to the evidence itself, and we begin not with the oral account of the mother of the victim but with the medical evidence, for a deliberate reason. The oral testimony of a solitary witness is best assessed not in a vacuum but against whatever objective and incontrovertible facts the record independently establishes. The medical evidence in this case furnishes precisely such an objective substratum. It is the evidence of a professional witness who had no interest in the outcome, it rests upon physical findings recorded upon the body of the victim, and it stands wholly independent of the account of the mother. If the medical evidence establishes the corpus of the offence, then the oral testimony falls to be tested against an established foundation of fact rather than upon its own strength alone. It is for this reason that we take up the medical evidence first.

Opinion of the cause death is clear and no doubt of competence of the autopsy surgeon or the correctness of the opinion was putforth

34. The post-mortem examination upon the body of the victim was conducted on 24.04.2018 at about 11 a.m. by PW-6, and the post-mortem report was proved as an exhibit on the record. The autopsy surgeon deposed, and the report records, that the cause of death of the victim was asphyxia as a result of throttling, that the death was homicidal in nature, and that the time of death was within about forty-eight hours preceding the examination. The opinion as to the cause of death was founded upon objective signs, including the injuries observable upon the neck of the victim, consistent with the compression of the throat by hand. There is no material on the record to doubt the competence of the autopsy surgeon or the correctness of the opinion, and the finding as to the cause of death was not seriously assailed before us.

Medical evidence independently corroborates the prosecution case

35. Two conclusions of the utmost importance follow from this evidence, and they follow independently of the oral testimony of any witness. The first is that the death of the victim was homicidal, and was occasioned by manual strangulation. This is not a case in which the fact of a homicide is itself in doubt, or in which the death is capable of being attributed to natural causes, to accident or to disease. The medical evidence puts it beyond doubt that the child was throttled to death. The second conclusion concerns the time of death. The post-mortem examination having been conducted at about 11:00 AM on 24.04.2018, and the death being opined to have occurred within about forty-eight hours prior thereto, the death is thereby fixed to a period that comfortably includes the afternoon of 23.04.2018, which is the very time at which, on the prosecution case, the appellant is said to have throttled the victim. The medical evidence thus independently corroborates the prosecution case both as to the manner and as to the approximate time of the death.

36. The post-mortem report is significant in a further and distinct respect. It records the presence of a small tear at the fourchette with oozing of blood, and the autopsy surgeon opined that this injury was indicative of sexual assault. The fourchette is the posterior commissure of the labia, and a fresh tear at that site accompanied by bleeding is a finding consistent with recent penetrative sexual assault upon the child. This finding, it must be emphasised, is an objective physical finding recorded upon the body of the victim at the post-mortem examination, and it is wholly independent of the account of the mother of the victim. The injury constitutes objective medical evidence strongly consistent with recent penetrative sexual assault and materially corroborates the account concerning the sexual violation of the victim. We shall have occasion, when we come to consider the scientific evidence and the defence, to address the submission founded upon the absence of male DNA in the vaginal smear, and it is sufficient at this stage to record that the physical injury to the genitalia of the child stands proved as a fact by the medical evidence.

Inmates of the house are in a position to know how the crime was committed is a settled principles of law as per section 106 IEA

38. It is at this point that the setting of the crime assumes a decisive significance, and it is convenient to introduce it here, for it forms the backdrop against which the entirety of the evidence must be read. The offences were committed within the four walls of the matrimonial home at village Kushalgarh. As per the case of both the prosecution and the defence, the only adults who ordinarily resided in that home were the appellant and the mother of the victim. The victim was a child of about six years. It is a settled principle of the law of evidence that where an offence takes place inside the privacy of a house, in which the inmates of the house are in a position to know how the crime was committed, and where the death of a person is shown to have occurred in circumstances within the special knowledge of the accused, a corresponding burden is cast upon the inmate of the house to offer a cogent explanation as to how the crime was committed, and a false or an absent explanation becomes an additional link in the chain of circumstances. This principle finds statutory recognition in Section 106 of the Evidence Act, which provides as follows:

“106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

39. This Court, in Trimukh Maroti Kirkan v. State of Maharashtra, explained the application of the said principle to offences committed within the secrecy of the home. It was held that where an accused is alleged to have committed the murder of a person and the offence is alleged to have taken place inside the four walls of a house in circumstances where the accused had a special knowledge of the events, the accused is under an obligation to give a plausible explanation for the cause of the death in his statement under Section 313 of the CrPC, and the absence of such an explanation, or the giving of a false explanation, would itself be an additional link in the chain of circumstances that completes the chain. We shall carry this principle with us through the analysis that follows, for the appellant was, on his own showing as well as on the prosecution case, an inmate of the home in which the victim met her death, and the burden of accounting for how a child living in that home came to be sexually assaulted and throttled to death is one that rests, in the manner and to the extent explained in Trimukh Maroti (Supra), upon him.

Medical evidence establishes independently

40. The medical evidence thus establishes, independently of any oral account, a homicidal death by throttling on or about 23.04.2018 and a recent sexual assault, within a home whose only adult occupants were the appellant and the mother. It is against this substratum that we now examine the ocular testimony of the mother of the victim.

SECTION D – THE OCULAR ACCOUNT OF THE MOTHER OF THE VICTIM IS SATISFIED

47. We are conscious that the mere consistency of a witness is not, by itself, a guarantee of truth, and that a false account may be adhered to as tenaciously as a true one. We do not therefore rest upon consistency alone. What persuades us of the essential reliability of the core of her account is the conjunction of several features, namely the particularity of her description of the scene of the throttling, the correspondence of that description with the independent medical evidence, the inherent improbability of a mother fabricating such a charge against her own husband concerning her own child, and the further circumstance, to which we now turn, that her account is corroborated upon a verifiable particular by the objective record.

49. For these reasons, we are satisfied that the core of the account of the mother of the victim, namely that the appellant subjected the victim to sexual assault and thereafter throttled her to death within the matrimonial home, is reliable and is corroborated by the objective medical evidence and by the telephone record. Her testimony has, however, been assailed on several grounds, to which we now turn.

SECTION E – THE ASSAULT UPON THE CREDIBILITY OF THE MOTHER OF THE VICTIM
What is substantive evidence and what is not substantive is explained

52. A statement recorded under Section 161 of the CrPC in the course of investigation is not substantive evidence. It is a previous statement, and the use that may be made of it is strictly circumscribed by Section 162 of the CrPC, which provides that no such statement shall be used for any purpose at the trial, save that it may be used to contradict its maker in the manner provided by Section 145 of the Evidence Act. The Explanation to Section 162 of the CrPC further provides that an omission to state a fact in such a statement may amount to a contradiction only if it appears to be significant and otherwise relevant having regard to the context, and that whether it does so is a question of fact. The substantive evidence in a criminal trial is therefore the testimony given on oath before the court, and it is that testimony, and not the earlier statement to the police, which furnishes the material for decision. The earliest statements of the mother are thus not the benchmark of truth against which her court testimony is to be measured, and their only legitimate use is to contradict her in the manner the law permits. A statement recorded under Section 164 of the CrPC, though recorded by a Magistrate, is likewise not substantive evidence, and it too may be used only to corroborate or to contradict its maker.

Section 145 IEA

53. The manner of such contradiction is prescribed by Section 145 of the Evidence Act, which provides as follows:

“145. Cross-examination as to previous statements in writing. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

The language of the provision is explicit. If it is intended to contradict a witness by a previous statement in writing, her attention must, before the writing can be so used, be called to those specific parts of it which are to be used for that purpose. A general assertion that a fact was not stated earlier does not satisfy the provision.

Omission is not a contradiction as matter of course

54. Nor does an omission amount to a contradiction as a matter of course. The question was authoritatively settled by the Constitution Bench of this Court in Tahsildar Singh v. State of U.P., wherein it was explained that an omission attains the character of a contradiction only where the omitted fact is irreconcilable with the statement made in the witness box, that is to say, where what was stated in court and what was omitted before the police cannot both be true, or where the omission is of a fact which, had it been true and within the knowledge of the witness, she would in the ordinary course have been expected to state. A mere failure to mention a detail which the narration did not call for, and which is not irreconcilable with the court version, is an omission simpliciter and not a contradiction. This position has been reiterated by this Court in Vijayakumar v. State of Tamil Nadu, which reaffirms that the writing must be specifically put to the witness if it is to be used for contradiction, and that an omission ripens into a contradiction only when it is significant and otherwise relevant in the context.

How to appreciate omission to identify whether it is contradiction or not explained

55. Consequently, two stages of inquiry follow. The first is whether the omission relied upon is irreconcilable with the court testimony, so as to amount to a contradiction at all. The second, which arises only if the first threshold is crossed, is whether the omission, being a contradiction, is material, that is, whether it goes to the root or touches only a peripheral detail. It is only a material contradiction going to the core that can impair the substratum of the testimony. In applying these two stages, it is convenient to classify the omissions relied upon, for they are not of a single kind, and to lump them together is to obscure the analysis. The omissions fall into three distinct categories. The first category comprises facts of a background and explanatory character, namely the prior ill-treatment of the child, the prohibition upon attending the Anganwadi, the earlier threats, the prior incident of strangulation, the episode relating to the function at the house of Tahira Bi, and the burning of the child’s leg. The second category comprises facts relating to the core incident, namely the sexual assault upon the child and the throttling of the child by the appellant. The third category comprises the details that emerged for the first time in the further cross-examination conducted in the year 2025. Each category calls for a distinct treatment.

Admitting omission continuously in further cross speaks her truthfulness

59. It is not without significance that the omissions relied upon by the appellant are known to the record only because the witness herself, in her further crossexamination, candidly admitted them. Confronted with each of the sentences of her deposition, she did not prevaricate or attempt to deny the omission, but acknowledged in each instance that the fact had not found place in her earlier statements. A witness bent upon deceiving the court would have been tempted to assert that she had stated these facts to the police all along and that the recording officer had failed to record them. The candour with which she admitted the omissions is itself a circumstance that speaks to her truthfulness rather than against it.

Omission is subject to the maxim falsus in uno, falsus in omnibus

60. There is a further and overarching answer to the entire submission founded upon the omissions, and it lies in the settled principle that governs the consequence of a proved contradiction. Even where an omission is shown to amount to a contradiction, and even where that contradiction is established in the manner that the law requires, the consequence is not the automatic rejection of the whole of the testimony of the witness. The maxim falsus in uno, falsus in omnibus is not a rule of law in this country, as we have already observed, and the duty of the court is to sift the truth from the exaggeration and the embellishment, to separate the grain from the chaff, and to act upon that part of the testimony which, after a careful scrutiny, it finds to be reliable and corroborated. This Court, in Selvamani v. State (Supra) has reiterated that the existence of omissions, contradictions and discrepancies does not entitle a court to discard the entirety of the evidence, and that the court must sift the evidence and determine whether the residue, after the embellishments are set aside, is sufficient to establish the guilt of the accused. Applying that principle, even if every omission relied upon by the appellant were treated as a proved contradiction, the result would not be the effacement of her testimony but the setting aside of the peripheral embellishments, leaving intact the corroborated core, namely that the appellant sexually assaulted the child and throttled her to death, which is the finding upon which the conviction rests.

Held the internal contradictions are not contradictions at all

66. For these reasons, we hold that the alleged internal contradictions are not contradictions at all. They dissolve upon a correct appreciation of the nature of the confinement described by the mother of the victim, which was a confinement of control and regulation and not of perpetual physical incarceration, and the true character of which appears from her own words once they are read as a whole and not in dismembered fragments. The incidents relied upon by the appellant are consistent with, and in some instances are positive proof of, the very regime of control that she described, and they do not detract from the reliability of her account.

E.3 The conduct of the mother of the victim: the entrapped witness
Submission regarding the conduct of the mother after the occurrence

67. The third and most insistent attack upon the mother of the victim is directed not at what she said but at what she did, and, more pointedly, at what she did not do. It is urged that her conduct was irreconcilable with that of a truthful witness and of a mother, in that she made no complaint to the police or to her own family though the abuse continued over months, that she did not herself take the child for treatment or summon help, that she did not flee or raise an alarm even on the day when the house was left unlocked, and that she washed the body of the child before it was taken away. These circumstances, it is said, are so unnatural that they rob her account of credibility. This submission, which has a superficial appeal, rests upon an assumption that must be examined, namely that there exists a single natural manner in which a woman so placed ought to have behaved, and that a departure from it betrays falsehood. We are unable to accept the assumption, and we consider it necessary to explain why, for the point is of importance well beyond this case.

Different people react differently to a given situation

68. It must be emphasized that human beings do not react to trauma, to terror and to abuse in a uniform or a predictable manner, and that there is no standard or model response against which the conduct of a victim or a witness may be measured and, if found wanting, condemned as false. This Court has repeatedly cautioned that different people react differently to a given situation, and that the court must not substitute for the actual conduct of the witness its own notion of how a reasonable person ought to have behaved. In Rana Partap v. State of Haryana, this Court observed that every person who witnesses a serious crime reacts in his own way, that there is no set rule of natural reaction, and that to discard the evidence of a witness on the ground that he did not react in a particular manner is to appreciate evidence in a wholly unrealistic manner. This Court has, more recently, deprecated in the strongest terms the tendency to judge the conduct of women who are victims of, or witnesses to, sexual crime against stereotyped assumptions of how such a woman ought to comport herself, and in XYZ v. State of M.P., it was emphasised that courts must not resort to notions of the appropriate or expected behaviour of a woman and must guard against assessing her credibility by reference to such stereotypes. The reticence of a victim of a sexual offence, or of a person compelled to witness one, may spring from fear, from shame, from social constraint or from a well-founded apprehension of the consequences of speaking, and delay or silence attributable to such causes is not a badge of falsehood. This much is settled by the consistent line of authority in State of Punjab v. Gurmit Singh, and Tulshidas Kanolkar v. State of Goa,.

Conduct of the mother analysed

69. When the conduct of the mother of the victim is examined in this light, and against the reality of her situation as it emerges from the record, it ceases to appear unnatural at all, and appears instead as the entirely intelligible conduct of a woman held in a condition of entrapment. She was a widow of the first marriage, without means of her own, who had entered upon a second marriage with the appellant and had brought her child into his house. She was illiterate. She was economically wholly dependent upon the appellant. She was the fourth wife of a man whose three previous wives had left him on account of his violence, and she was, on the evidence, subjected to the same violence, being beaten when she attempted to intervene to protect her child. She was threatened, in terms, that if she spoke she and the child would both be buried and that it would be given out that she had run away with another man. Her movements were controlled, her contacts were regulated, and her access to a telephone was confined to the numbers her husband permitted. A woman so placed is not a free agent who may be expected to walk into a police station at the first opportunity. She is, in a real and not a merely rhetorical sense, a captive.

Behavioural science is explained [Editor note: This science is the need of the hour to eliminate the pseudoscience such as conduct still examine in the parameters of custom]

70. The behavioural sciences have long recognised the phenomenon of which the conduct of the mother of the victim is an instance. Dr. Lenore E. Walker27, an American clinical and forensic psychologist and a pioneering authority on the psychology of abused women, in her work The Battered Woman published in the year 1979, described the cyclical pattern of violence that characterises abusive intimate relationships, in which phases of tension and acute violence alternate with phases of contrition, and explained, by reference to the concept of learned helplessness, how the repetition of such cycles may erode the capacity of the victim to extricate herself, so that her continued presence in the abusive home is not to be mistaken for acquiescence or for the absence of abuse. Dr. Judith Lewis Herman 28, an American psychiatrist associated with the Harvard Medical School, in her work Trauma and Recovery published in the year 1992, situated domestic abuse alongside other conditions of prolonged captivity and coercive control, and observed how the perpetrator of such abuse maintains his dominance through isolation, secrecy and terror, and how, in order to escape accountability, he promotes the forgetting of his acts, so that, in her words, “If secrecy fails, the perpetrator attacks the credibility of his victim.” We are conscious that the framework of learned helplessness has itself been the subject of scholarly qualification, and we do not adopt it as a diagnosis or apply it as a label to the mother of the victim, whose conduct in fact reveals not passivity but a persistent and courageous resistance, to which we shall come. We refer to this body of learning for the limited but important purpose of dispelling the lay assumption, upon which the appellant’s submission rests, that a woman genuinely subjected to abuse would necessarily and promptly report it, and of affirming that silence, endurance and continued cohabitation are, tragically, among the most common features of the experience of abused women, and are not indicia of fabrication.

71. That this is not a matter of theory alone, but of demonstrable social reality in the very society to which the mother of the victim belongs, is borne out by the empirical record. According to the National Family Health Survey (NFHS-5) conducted in the years 2019 to 202129, approximately 29.3 per cent of ever-married women in India in the age group of 18 to 49 years reported having experienced physical or sexual violence at the hands of their spouse, and, of the women who had experienced such violence, on the order of three-fourths never sought help from any quarter and never so much as disclosed the violence to any person. These figures, drawn from the largest such survey in the country, establish that the silence of the abused woman is not the exception but the norm, and that the failure to report is the overwhelmingly common response and not an aberration calling for suspicion. The conduct of the mother of the victim, in enduring in silence what was done within the home, is therefore not the singular conduct of a false witness but the tragically representative conduct of the abused woman, and it would be a perverse use of these realities to convert the very silence that the conditions of her captivity imposed upon her into an instrument for the acquittal of the man who imposed them.

74. At this juncture, we want to make an important observation. It is a recurring feature of cases of this nature that the very conditions of secrecy, isolation and terror by which the abuser secures his dominance and the silence of his victim are afterwards pressed into service, in the courtroom, as arguments to discredit that victim when at last she speaks, so that, as the scholarship we have referred to observes, the perpetrator who cannot maintain secrecy turns instead to attacking the credibility of his victim. The perpetrator who has procured silence through fear then seeks to convert that silence, and the imperfections of a disclosure made late and under duress, into proof that the abuse never occurred. A court alive to the realities of abuse within the home must be vigilant not to lend itself to this stratagem, and must ensure that the disabilities which the abuser imposed upon his victim are not permitted to enure to his benefit. For the reasons we have given, we hold that the conduct of the mother of the victim, far from impairing her credibility, is consistent with the truth of her account, and that the submission founded upon it must be rejected.

Distinction between possibly be true and what is proved to be true explained and based on that theory of false implication is rejected

84. It is well to remember, in this connection, the settled distinction between what may possibly be true and what is proved to be true, and the corresponding caution that a criminal court does not act upon fanciful or conjectural possibilities conjured up in aid of the defence. This Court, in Shivaji Sahabrao Bobade v. State of Maharashtra, observed that the dangerous doctrine that a mere possibility in favour of the accused must lead to acquittal is to be guarded against, and that a court must not allow suspicion to take the place of proof, but equally must not allow a reasonable and probable conclusion drawn from proved facts to be displaced by a remote or fanciful hypothesis. The theory of false implication advanced in the present case is a hypothesis of precisely that fanciful character. It is unsupported by any material on the record beyond the ipse dixit of the appellant in his statement under Section 313 of the CrPC, it is contradicted by the objective medical evidence, and it attributes to a bereaved mother a course of conduct so contrary to nature and to self-interest as to lie beyond the bounds of rational acceptance. We reject it.

Account of the mother is found to be reliable and corroborated

86. Having considered each of the five attacks upon the credibility of the mother of the victim, namely the alleged material omissions, the alleged internal contradictions, the alleged unnatural conduct, the call detail record, and the alleged contradiction with PW-4 and the theory of false implication, and having found each of them to be without substance, we hold that the account of the mother of the victim upon the core events, which we have found to be reliable and corroborated, stands unimpaired by the challenges directed against it. We accordingly accept her evidence that the appellant subjected the victim to sexual assault and thereafter throttled her to death, and we proceed upon that footing in the sections that follow.

SECTION F – THE VICTIM’S DYING DECLARATION
Appellant sexually assaulted the child and thereafter throttled her to death

87. Thus far we have found that the account of the mother of the victim, that the appellant sexually assaulted the child and thereafter throttled her to death, is reliable and corroborated, and that it withstands each of the attacks directed against it. The proof of the sexual assault, however, does not rest upon the account of the mother alone, nor even upon that account taken together with the medical evidence. There is upon the record a further and a distinct piece of evidence upon this question, of a solemn and a peculiar character, and it is the voice of the victim herself. Upon the night of 21.04.2018, when the mother found the child in the condition we have described, the child made a disclosure to her mother of what the appellant had done to her. That disclosure was deposed to by the mother in her examination-in-chief, and it is necessary now to consider its legal character and its effect.

Statement of the victim (deceased) to her mother and the mother repeats the same in her testimony (deposition) is admissible in evidence as dying declaration

88. The disclosure of the child, as deposed to by the mother, was to the following effect, recorded in the deposition of 16.07.2018.

“My girl also told me that the accused had removed her legging and he had taken off her underwear and was also stripped himself naked and slept on her and acted wrong with her. I understood that the accused raped my baby girl.”

The question is whether this statement of the child, who did not survive to depose and whose voice can therefore reach the Court only through the mouth of her mother, is admissible in evidence, and if so, with what effect.

89. The statement is, in our view, admissible under Section 32(1) of the Evidence Act. That provision constitutes an exception to the rule against hearsay, and it renders relevant the statement of a person who is dead, in the circumstances there set out. The provision, so far as is material, is in these terms. “

32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. -Statements, written or verbal, of relevant facts made by a person who is dead are themselves relevant facts in the following cases:-

(1) When it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”

Hon’ble Supreme Court explains how the statement of the deceased’s victim to her mother is dying declaration

90. Two features of the provision, as it has been expounded by this Court, require to be noticed, for upon them the admissibility of the child’s disclosure depends. The first is that the statement need not have been made under an expectation of death. The concluding words of the clause make this explicit, and a statement is admissible under Section 32(1) of the Evidence Act, whether or not the maker was, at the time of making it, in expectation of death. The apprehension that a child of six could not have appreciated the imminence of death, which might have been fatal to the admissibility of the statement as a dying declaration in the traditional and narrower sense, is therefore immaterial under the law as it stands in this country. The second feature is that the statement is admissible not only when it relates to the cause of death directly, but also when it relates to any of the circumstances of the transaction which resulted in the death. It is upon this second and wider limb that the disclosure of the child is admissible, and it is necessary to explain why the sexual assault of 21.04.2018 and the death by throttling of 23.04.2018 constitute one transaction within the meaning of the provision.

91. The expression “circumstances of the transaction which resulted in his death” has been the subject of authoritative exposition. In the classical judgement of Pakala Narayana Swami v. King-Emperor, it was explained that the circumstances of the transaction which resulted in the death are not confined to the actual occurrence which caused the death, but extend to the circumstances that have some proximate relation to the actual occurrence and form part of the transaction of which the death is the culmination. This Court, in Sharad Birdhichand Sarda v. State of Maharashtra, considered the ambit of Section 32(1) of the Evidence Act at length and held that the section is not to be construed narrowly, that the expression “circumstances of the transaction” is wider than the cause of death, and that where the statement relates to circumstances which have a proximate and not a remote or unconnected bearing upon the death, and which form part of the same transaction, it is admissible. It was further recognised that the proximity to be insisted upon is a proximity of relation to the transaction and not necessarily an immediate proximity of time, and that the length of the interval between the statement and the death is a matter that goes to weight and to the question whether the statement truly forms part of the transaction, and not to an inflexible bar of admissibility. This Court reaffirmed, in Rattan Singh v. State of Himachal Pradesh, that the circumstances of the transaction may precede the actual killing and may be separated from it by an interval, provided that they are connected with it as parts of one continuous transaction.

Hon’ble Supreme Court applied the aforementioned principles in this case and concluded the disclosure is dying declaration

92. Applying these principles, we are satisfied that the disclosure of the child forms part of the very sequence of events which resulted in her death. This is not a case in which the sexual assault and the death were unconnected episodes separated by an interval of chance. The record discloses a single, continuous and escalating course of conduct on the part of the appellant towards the child. The child was sexually assaulted on the night of 21.04.2018. Her condition thereafter deteriorated. She was assaulted again on the morning of 22.04.2018. Her deterioration continued, and she was denied medical assistance. Upon his return on 23.04.2018, the first concern of the appellant was to ascertain whether the child had disclosed anything to her mother, and upon the child screaming he throttled her. The sexual assault and the throttling were not two transactions but successive stages of one transaction, bound together by the identity of the perpetrator, by the continuity of the child’s suffering, and, most tellingly, by the motive that the conduct of the appellant itself reveals, for his anxiety to know whether the child had spoken, and his act of silencing her when she screamed, disclose that the killing was the culmination of, and was designed to suppress the disclosure of, the very sexual assault to which the child’s statement related. The disclosure of the child as to the sexual assault is therefore a statement as to a circumstance of the transaction which resulted in her death, and it is admissible under Section 32(1) of the Evidence Act. The admissibility of the statement does not depend upon an anterior acceptance of its truth. It arises from the independent circumstances connecting the sexual assault, the subsequent deterioration of the victim, the concern displayed by the appellant as to whether she had spoken, and the killing that followed, which together establish the requisite relationship between the statement and the transaction resulting in her death.

Disclosure of the victim to her mother is not only a dying declaration but also admissible under Section 6 of the Evidence Act

93. We are further of the view that the disclosure is admissible upon an independent footing, as forming part of the res gestae under Section 6 of the Evidence Act. The disclosure was made by the child to her mother in the immediate aftermath of the assault, upon the mother gaining access to the child, while the child was still in the grip of the pain and distress of what had been done to her, and it was so proximate to the event, and so spontaneous, as to be a part of the event itself and to exclude any possibility of concoction or design. A statement so made is admissible under Section 6 of the Evidence Act as a fact forming part of the same transaction, and it lends further support to the admissibility of the disclosure that we have already found under Section 32(1) of the Evidence Act.

How to appreciate the dying declaration since it is not tested through cross-examination is explained

94. As to the weight of the disclosure, we are conscious that a statement admitted under Section 32(1) of the Evidence Act is not tested by cross-examination of its maker, and that the Court must for that reason satisfy itself of its reliability before acting upon it. Applying that caution, we find the disclosure of the child to be reliable. It was made to her own mother, the person to whom a child in pain would naturally turn. It was made spontaneously and at the earliest opportunity. It contains particulars, as to the removal of her clothing, the disrobing of the appellant and the nature of what was done to her, which are consistent with sexual assault and which a child of that age could not have invented. And, decisively, it is corroborated by the objective medical evidence, for the fresh tear at the fourchette with oozing of blood, found upon the body of the child at the post-mortem examination, is the physical confirmation of the very act that the child described to her mother. The account of the child and the findings of the autopsy speak with one voice.

95. The result is that the sexual assault upon the victim is established not by one route but by two independent evidentiary routes, each corroborated by the medical evidence. It is established by the direct ocular account of the mother of the victim, whose reliability we have upheld. And it is established, independently, by the disclosure of the victim herself, admissible under Section 32(1) and under Section 6 of the Evidence Act, and corroborated by the injury found at the post-mortem examination. The victim, silenced in life, is not silenced in law, and her voice, reaching the Court through her mother and confirmed by the marks upon her body, bears witness to what was done to her.

SECTION G – THE CORROBORATIVE EVIDENCE
Extra-judicial of the appellant to his mother and conduct of the appellant

96. We have found the core account of the mother of the victim to be reliable, and we have found the sexual assault to be established independently by the disclosure of the victim. We now turn to the further evidence upon the record that corroborates the case of the prosecution, comprising the evidence of the neighbours and the sister-in-law upon the atmosphere of the household, the extra-judicial confession of the appellant, and the conduct of the appellant. Before doing so, we record one matter in which we are unable to accept a part of the prosecution case, for candour in what is rejected lends assurance to what is accepted.

Delay in recording the statement of the witnesses by the IO itself not a ground to discard their evidence

98. Turning to the evidence that we do accept in corroboration, PW-2 and PW-5, who are residents of the locality, and PW-4, the sister-in-law, spoke about the atmosphere of the household and the antecedent ill-treatment of the child. It was urged that their evidence is worthless because their statements under Section 161 of the CrPC came to be recorded as late as 19.05.2018, some twenty-six days after the incident, and that this delay stamps their evidence as an afterthought. We are unable to accept that the delay in the recording of their statements is, in the circumstances of this case, a ground for discarding their evidence. It is settled that a delay on the part of the Investigating Officer in recording the statement of a witness does not, by itself, render the evidence of the witness unreliable, and that where the delay is attributable to the investigating agency and the witness is not shown to have any reason to depose falsely, the delay is not fatal. This Court has held, in State of U.P. v. Satish, that delay in the examination of a witness by the Investigating Officer is not, in the absence of any indication of the witness having been won over, a ground to reject the testimony, and that the Investigating Officer must be questioned upon the reason for the delay before an adverse inference can be drawn from it. In the present case, the delay was not put to the Investigating Officer as a matter with which he was confronted for explanation, and the witnesses were residents of a village in which, on the evidence, the appellant was a man who was feared. The reticence of such witnesses to come forward, and the delay of the investigating agency in reaching them, are readily understandable and do not impair their evidence, which, so far as it speaks to the ill-treatment of the child and the atmosphere of fear surrounding the appellant, corroborates the account of the mother.

Extra-Judicial Confession: Mother of the victim deposing about the extra-judicial confession of the appellant as if she heard that the appellant had informed her relatives that he had strangled the deceased [appellant did not state anything about the crime directly to the mother of the victim but it is she overheard the confession of the appellant]

99. We come next to the extra-judicial confession of the appellant. The mother of the victim deposed that, upon the body of the child being taken to Javra to her family, the appellant stated to the members of her family that he had throttled the child to death. In her deposition of 16.07.2018 she described this in the following terms.

“My relatives asked accused how [victim’s name] died so he told them that he had strangled [victim’s name] to death.”

An extra-judicial confession is admissible in evidence as an admission of guilt, and although it is a species of evidence that the Court approaches with caution, requiring that it be voluntary and truthful and that it inspire confidence, a voluntary and credible extra-judicial confession may form the basis of, or may lend corroboration to, a conviction. This Court, in Sahadevan v. State of Tamil Nadu, set out the principles governing the reception of such a confession, cautioning that it is a weak piece of evidence that must be received with care and that must be corroborated, while recognising that a confession which is voluntary, which is made in circumstances free from suspicion, and which is corroborated by the other evidence, may be acted upon. Tested by these principles, the confession spoken to by the mother carries conviction. It was made not to a person in authority or in circumstances of coercion, but to the family of the deceased child, at the moment when they demanded to know how she had died. It was, in substance, an admission wrung from the appellant by the direct question of the bereaved family, and it is difficult to conceive of any inducement or design that could have prompted a false confession of the killing of the child in such a setting. It is, moreover, corroborated at every point by the evidence we have already accepted, namely the ocular account of the mother, the finger impressions upon the throat of the child, and the medical opinion that the death was homicidal and was caused by throttling. We are satisfied that the extra-judicial confession was made and that it may properly be relied upon in corroboration of the guilt of the appellant.

100. Finally, we come to the conduct of the appellant, which the law treats as a relevant fact. Section 8 of the Evidence Act renders relevant the conduct of a person against whom a proceeding is taken, where such conduct influences or is influenced by any fact in issue or relevant fact. The conduct of the appellant, examined across the whole of the sequence, is the conduct of a man conscious of his guilt. Upon his return home on 23.04.2018, his first concern was not for the gravely ailing child but was to ascertain whether the child had disclosed anything to her mother, an enquiry intelligible only in a man apprehensive that his crime had been revealed. When pressed to take the child to hospital, he refused, and, as the mother deposed, he asserted that the child was pretending and would not die, thereby ensuring that the child received no medical attention that might have exposed her injuries. When at length he fetched a practitioner, it was one who was permitted only to look at the child from the threshold and who did not touch her. Upon being discovered with his hands at the throat of the child, he was seen to tremble and to perspire and to protest, unprompted, that he had not killed her. And when the child was dead, he proposed that she be buried at once at Kushalgarh, where the death might have escaped all scrutiny, a course frustrated only by the insistence of the mother that the body be taken to her family. Each of these items of conduct, taken singly, might admit of more than one explanation. Taken together, and viewed as a connected course of conduct, they form a pattern that is consistent only with the consciousness of guilt, and that is wholly inconsistent with the conduct of an innocent man confronted with the sudden illness and death of a child in his home. This Court, in Anant Chintaman Lagu v. State of Bombay, recognised that the conduct of an accused, before and after the offence, is a relevant circumstance that may, in a fit case, form a link in the chain of evidence pointing to his guilt. The conduct of the appellant in the present case is such a circumstance, and it points unerringly to his guilt.

101. The evidence considered in this section, namely the corroboration by the neighbours and the sister-in-law of the atmosphere of ill-treatment, the extra-judicial confession made to the family of the deceased, and the incriminating conduct of the appellant, corroborates and reinforces at every point the account of the mother of the victim and the disclosure of the victim, which we have already accepted. We now turn to the scientific evidence.

DNA Evidence
DNA analysis report can be used in evidence under section 293(1) CrPC without him being examined and if any objection to the author of the report not called is unsustainable

105. The report of the DNA analysis in the present case was authored by an officer of the Forensic Science Laboratory of the Government, being an officer within the description contained in sub-section (4) of Section 293 of the CrPC. His report was accordingly one that the Court was entitled to use in evidence under sub-section (1) without his being examined, and the objection to its admissibility on the sole ground that its author was not called is, in law, unsustainable. It was open to the appellant, had he genuinely wished to test the report, to invoke sub-section (2) of Section 293 and to request the Court to summon and examine the expert as to the subject-matter of his report. The appellant made no such request at the trial. A party who forbears from exercising the statutory right to summon the expert cannot afterwards be heard to complain that the report was read without the expert being examined. The authorities relied upon by the appellant, in which the contents of a scientific report were held not to have been proved, are distinguishable, for they were concerned with situations in which the report did not carry the statutory character that attracts Section 293, or in which the very reliability of the technique or of the underlying data was genuinely and specifically put in issue at the trial, which was not the case here.

Chain of custody: formal deficiency in the recital of the seizure memo itself does not establish that the samples were tampered with

106. Upon the question of the chain of custody, the submission was that the movement of the samples from the point of their seizure to the point of their analysis was not established, and that the possibility of tampering could not be excluded. We have examined the record upon this aspect. The articles seized in the course of the investigation were entered in the register maintained at the malkhana, and they were forwarded to the laboratory and were received there in a sealed condition, as the receipt of the laboratory establishes. The submission that the seizure memoranda did not in terms recite the sealing of the articles is a submission that goes, at the highest, to the weight of the scientific evidence and not to its admissibility. Where the sealing of the articles and their deposit at the laboratory in a sealed condition are otherwise borne out by the record, a formal deficiency in the recital of the seizure memoranda does not, by itself, establish that the samples were tampered with, and no material was placed before the courts below or before us to suggest that any tampering in fact occurred.

107. Upon the question of the findings, the submission was that the results of the DNA analysis were innocuous, in that no male DNA was detected in the vaginal smear of the victim, and that the matches which were found were consistent with the appellant and the victim having resided together in the same household. We are unable to accept that the findings are innocuous. The absence of male DNA in the vaginal smear is not, in the circumstances of this case, a circumstance that exonerates the appellant, for the body of the child was washed before it was taken for the post-mortem examination, and a lapse of time had intervened between the assault and the examination, and the absence of a detectable trace in such circumstances is as consistent with the washing away and the degradation of the material as with its original absence. The finding of the fresh tear at the fourchette, which we have already noticed, establishes the fact of the sexual assault independently of the DNA analysis, and the absence of a DNA trace in the smear cannot displace that physical finding. As to the matches that were found, we do not rest any conclusion upon their innocuous or their incriminating character, since we treat the scientific evidence as no more than corroborative, and it is sufficient to observe that the findings, so far as they go, are consistent with the guilt of the appellant and are in no manner exculpatory.

Held: DNA analysis report was held admissible under section 293 CrPC and objection founded is not good

108. For these reasons, we hold that the report of the DNA analysis was admissible under Section 293 of the CrPC without the examination of its author, that the objection founded upon the chain of custody goes to weight and not to admissibility and is not made good upon the record, and that the findings are not exculpatory. We hold, above all and as we have held from the outset of this section, that the conviction does not rest upon the scientific evidence, which is corroborative only, and that the entire body of submissions directed against the DNA report, even if it were accepted in its entirety, would leave the conviction, founded as it is upon the ocular account, the disclosure of the victim, the medical evidence, the extra-judicial confession and the conduct of the appellant, wholly unaffected.

SECTION I- THE DEFENCE CASE
Plea of alibi, counter-narrative, plea of fabrication are the defence case

109. We now turn to the defence set up by the appellant, which is threefold. The first limb is the plea of alibi, that the appellant was absent from the village on the relevant dates. The second is the counter-narrative, spoken to by DW-3, that it was the mother of the victim who used to beat the child. The third is the plea of fabrication, that the appellant was coerced by the police through a threat of implication in a case relating to opium husk and was made to sign blank papers. We consider each in turn, bearing in mind that the appellant, having been an inmate of the home in which the child met her death, stands in the position we have described when dealing with Section 106 of the Evidence Act.

Defence of plea of alibi analysis

110. As to the plea of alibi, the law is settled and it is stringent. The plea of alibi is not a matter of mere assertion. When an accused pleads that he was elsewhere at the time of the offence, the burden of establishing that plea lies upon him, and it is a burden that he must discharge by cogent and satisfactory evidence which renders his presence at the scene of the crime not merely doubtful but impossible. This Court, in Dudh Nath Pandey v. State of Uttar Pradesh, held that the plea of alibi must be proved with certainty so as to exclude the possibility of the presence of the accused at the place of occurrence, and in Binay Kumar Singh v. State of Bihar, it was reiterated that the burden of establishing the plea rests wholly upon the accused who sets it up, and that the plea must be established not by a preponderance of probabilities alone but by evidence of a quality that makes the presence of the accused at the scene impossible.

Plea of alibi fails due to his own showing

111. When the plea of alibi in the present case is examined against this standard, it fails at the threshold, for a reason that is decisive and that renders it unnecessary to dwell upon the quality of the evidence adduced in its support. The plea of alibi, even if it were accepted at its very highest, does not extend to the time of the offence of murder. The death of the victim, as the medical evidence establishes and as we have found, occurred on 23.04.2018. The alibi set up by the appellant, and spoken to by himself as DW-1, is that he had left the village on 21.04.2018 and returned on the following day. Upon his own showing, therefore, the appellant was present in the home from the afternoon of 22.04.2018, and he was admittedly present there on 23.04.2018, which is the very day of the throttling. The mother of the victim, indeed, deposed that the appellant returned at about noon on 23.04.2018, a return confirmed by the two calls she made to him that morning which the call records establish, and it was after that return that the child was throttled. The plea of alibi thus does not even engage the charge of murder, for it places the appellant back in the home well before the death, and an alibi that does not cover the time of the offence is no alibi at all.

112. In so far as the plea of alibi was pressed in relation to the offence of sexual assault said to have occurred on the night of 21.04.2018, it does not assist the appellant either. We have found the sexual assault to be established not merely by reference to a particular calendar date but by the disclosure of the victim and by the fresh genital injury found at the post-mortem examination, which fixes a recent sexual assault upon the child irrespective of the precise date. The mother of the victim, who is an illiterate woman, was understandably imprecise as to dates, but she clarified in her further cross-examination that the assault and the beating of the child had preceded the departure of the appellant to the Deviya Sthan, and the sequence of events she described is internally consistent even where her recollection of the calendar was not. The confusion of an unlettered witness over dates, against a clear and consistent account of the sequence of events corroborated by the physical injury upon the body of the child, does not create the reasonable doubt that the appellant seeks to extract from it. The plea of alibi, whether directed at the murder or at the sexual assault, accordingly fails.

114. The falsity of this defence is not without a further consequence, for a false defence, while it can never supply the deficiency of the prosecution evidence, may in a fit case be pressed into service as an additional link in the chain of circumstances once the prosecution has established its case. Where the prosecution has proved the facts from which the guilt of the accused may be inferred, and the accused responds with a defence that is demonstrably false, the falsity of that defence lends further assurance to the conclusion of guilt. This principle assumes a particular significance in the present case when it is read with Section 106 of the Evidence Act, to which we have already adverted. For the reasons explained in Trimukh Maroti Kirkan (Supra), the appellant, as an inmate of the home in which the child died, was bound to offer a true and plausible explanation of how she came to be sexually assaulted and throttled, and the false explanation he gave, in the counter-narrative of his son, becomes under Section 106 an additional circumstance completing the chain against him.

Defence case fails

116. For these reasons, the whole of the defence case fails. The plea of alibi does not cover the time of the murder and does not answer the sexual assault. The counter-narrative of DW-3 is false, is irreconcilable with the medical evidence, and operates, with Section 106 of the Evidence Act, as an additional link against the appellant. And the plea of fabrication is unsubstantiated and is inconsistent with the alibi. None of the three limbs of the defence raises a reasonable doubt upon the case that the prosecution has established.

Defect in investigation and its analysis
Defect in investigation does not affect the credibility of the evidence

118. The principle is that a defect in the investigation does not, by itself, entitle the accused to an acquittal where the evidence adduced at the trial is otherwise found to be trustworthy and sufficient to establish guilt. The guilt or the innocence of the accused is to be determined upon the evidence led before the court, and a lapse on the part of the investigating agency cannot be permitted to enure to the benefit of the accused so as to defeat a case that is otherwise proved, for to hold otherwise would place it within the power of an errant investigator to frustrate the course of justice and would visit upon the victim the consequences of the failings of the investigating agency. This Court, in Karnel Singh v. State of Madhya Pradesh, and in State of Karnataka v. K. Yarappa Reddy, held that a lapse on the part of the Investigating Officer cannot affect the credibility of the evidence of the witnesses where that evidence is otherwise reliable, and in C. Muniappan v. State of Tamil Nadu, this Court reaffirmed that a defect in the investigation, by itself, cannot be a ground for acquittal. It is upon this foundation that we examine the defects alleged.

Appreciation of registration of FIR against unknown persons

119. As to the registration of the First Information Report against an unknown person, the submission proceeds upon a misapprehension of the office of such a report, which is not an encyclopaedia of the prosecution case but an instrument to set the machinery of the criminal law in motion. The report here was registered upon the information of the unnatural death of the child, at the inception of the investigation and before the culpability of the appellant had been established, and it was natural that it should have been registered against an unknown person. The omission of the name of the appellant from the printed report does not efface the statement that the mother made in the course of the investigation, nor does it detract from the evidence led at the trial. If anything, the registration of the report against an unknown person, and the unhurried manner in which the investigation thereafter fastened guilt upon the appellant, tell against the theory that the police had set out to foist a false case upon him, for an agency bent upon a false implication would have named its target at the earliest.

120. The anonymous telephone call and the discrepancies concerning it, and the delay in the arrest of the appellant, do not touch the substance of the case. The source of the first suspicion, and the precise point at which the arrest was effected, bear upon the conduct of the investigation and not upon the commission of the offence, which stands established by the evidence we have accepted. We would observe, moreover, that the circumstance that the appellant was not arrested at once but was left at large while the investigation took its course is again difficult to reconcile with the theory of a police force determined to frame him, for the framing of an innocent man is not ordinarily accomplished by leaving him at liberty.

Taking cognizance is on offence and not of section and that mention or omission of a particular provision is not crucial and it is the duty of the court to apply correct provisions

121. As to the addition of the offences of rape and of the offences under the POCSO Act without a section alteration report, we are unable to regard this as a circumstance that vitiates the prosecution. The report was registered upon an unnatural death before the post-mortem examination, and it was that examination of 24.04.2018 that revealed the fresh genital injury indicative of sexual assault, upon which the sexual offences came naturally to be added. It is, in any event, settled that cognizance is taken of an offence and not of a section, and that the mention or the omission of a particular provision is not decisive, for it is the duty of the court to apply the correct provisions to the facts proved before it. The charges were framed by the Trial Court on 02.07.2018 under all of the relevant provisions after an application of judicial mind, the appellant defended himself against them, and no prejudice has been shown to have been occasioned to him. In the absence of prejudice, an irregularity of this administrative character cannot vitiate the trial.

122. As to the disclosure statement and the recoveries, and the circumstance that the panch witnesses turned hostile, we do not find it necessary to rest anything upon the disclosure or the recoveries at all. The clothes of the victim were produced by the mother herself, as she deposed, and the case upon the sexual assault and the death does not depend upon the disclosure attributed to the appellant or upon the recoveries said to have followed from it. We may therefore leave the disclosure and the recoveries entirely out of consideration, and the case is in no manner weakened by doing so. The submission founded upon the hostility of the panch witnesses is thus rendered academic, for it assails a limb of the prosecution case upon which we place no reliance.

Attack on the investigation fails

123. For these reasons, the attack upon the investigation fails. Such defects as are alleged are, in part, founded upon a misapprehension of the office of the documents concerned, and are, for the rest, defects that do not touch the substance of the case, which stands established upon evidence that we have found to be trustworthy. Upon the settled principle that a defective investigation does not enure to the benefit of the accused where the evidence is otherwise reliable, the whole of this attack is rejected.

SECTION K – THE OFFENCES ESTABLISHED
The offences in this case are offence of murder, aggravated sexual assault under the IPC and the POCSO Act and offence of causing disappearance of evidence

124. Upon the findings we have recorded, it remains to identify how the evidence establishes each of the offences of which the appellant has been convicted. We do so in this section, addressing the offence of murder, the offences of aggravated sexual assault under the IPC and the POCSO Act, and the offence of causing disappearance of evidence.

Explaining the offence of murder is established

125. As to the offence of murder punishable under Section 302 of the IPC, the evidence establishes it beyond doubt. The medical evidence proves that the death of the victim was homicidal and was caused by asphyxia resulting from throttling, that is, by the compression of the throat by hand. The ocular account of the mother, whom we have found to be reliable, proves that it was the appellant who throttled the child, and that account is confirmed by the finger impressions upon the throat of the child that she observed, by the medical opinion as to the cause of death, and by the extra-judicial confession of the appellant. The act of throttling a child of about six years by seizing her throat with both hands, and of persisting in that act until the child ceased to live, is an act from which the intention to cause death is to be inferred as a matter of plain and inescapable inference, for such an act is done with the intention of causing death within the meaning of clause firstly of Section 300 of the IPC, and is, in any event, an act done with the intention of causing bodily injury sufficient in the ordinary course of nature to cause death within the meaning of clause thirdly. No question of any exception to Section 300 arises upon the facts. The offence of murder under Section 302 of the IPC is established.

Offence of aggravated penetrative sexual assault is established

126. As to the offence of aggravated penetrative sexual assault, it is necessary first to establish the age of the victim, for the age is the fact that determines the character and the gravity of the offence. The age of the victim is proved by the birth certificate that was seized in the course of the investigation, and by the testimony of the mother that the victim was about six years of age at the time of her death, which testimony was not displaced. We find it established that the victim was a child well below twelve years of age. The fact of penetrative sexual assault upon the victim is established by the disclosure of the victim, admissible under Section 32(1) of the Evidence Act, by the account of the mother, and by the fresh tear at the fourchette with oozing of blood found at the post-mortem examination, which we have held to be the physical confirmation of the assault. The identity of the appellant as the person who committed the assault is established by the same body of evidence.

Offence punishable under Section 376AB of the IPC is established

127. Upon these facts, the offence punishable under Section 376AB of the IPC is established. That provision, which prescribes the punishment for the rape of a woman under twelve years of age, was inserted into the IPC by the Criminal Law (Amendment) Act, 2018, with effect from 21.04.2018, being the date on which the corresponding Criminal Law (Amendment) Ordinance, 2018 had come into force. The penetrative sexual assault upon the victim is established as having occurred on the night of 21.04.2018 and thereafter, that is, on and after the date on which the provision came into force, and the provision is therefore squarely attracted, and no question of any retrospective application of a penal provision, such as would offend Article 20(1) of the Constitution of India, arises. The victim having been a child below twelve years of age, and the appellant having committed penetrative sexual assault upon her, the offence under Section 376AB of the IPC is made out.

Offence under POCSO Act established

128. The same facts establish the offences under Sections 5 and 6 of the POCSO Act. Section 5 enumerates the forms of aggravated penetrative sexual assault, and Section 6 prescribes the punishment for it. The assault in the present case falls within aggravated penetrative sexual assault upon more than one count. It falls within clause (m) of Section 5, in that it was committed upon a child below twelve years of age. It falls within clause (n) of Section 5, in that it was committed by the appellant, who, being the step-father of the victim and residing in the same household, was a relative of the child. Once the foundational facts are established by the prosecution, the presumption arising under Section 29 of the POCSO Act comes into operation. That provision enacts that where a person is prosecuted for an offence under, among others, Sections 5 and 6 of the POCSO Act, the Special Court shall presume that such person has committed the offence, unless the contrary is proved. The presumption is not a substitute for the proof of the foundational facts, and it operates only after those facts, namely the age of the victim, the fact of penetrative sexual assault, and the identity of the accused as the assailant, have been established by the prosecution. In the present case those foundational facts stand established, as we have found, by evidence independent of the presumption, and the burden thereupon cast upon the appellant to prove the contrary has not been discharged, his defences having been found to be false. We wish to make it clear that we do not rest the conviction upon the statutory presumption. The conviction rests upon the affirmative evidence we have discussed, and the presumption under Section 29 operates only to reinforce a conclusion that the evidence independently establishes. The offences under Sections 5 and 6 of the POCSO Act are made out.

129. The offences under Sections 376(2)(f) and 376(2)(n) of the IPC are likewise established upon the findings we have recorded. The offence under Section 376(2)(f) is attracted because the appellant, being the step-father and a person in a position of trust and authority in relation to the victim, committed rape upon her. The offence under Section 376(2)(n) is attracted because the appellant committed rape upon the victim repeatedly, as the evidence of the sustained and repeated abuse establishes.

Section 201 IPC is established through the conduct of the appellant that he vuried the child

130. As to the offence punishable under Section 201 of the IPC, of causing the disappearance of evidence, it is established by the conduct of the appellant in proposing that the child be buried at once at Kushalgarh, with the knowledge that her death was a homicide and with the intention of screening himself from legal punishment, a design that was frustrated only by the insistence of the mother that the body be taken to her family, where the truth came to light. The ingredients of the offence under Section 201 of the IPC are satisfied.

131. In the result, the offences under Sections 302, 376(2)(f), 376(2)(n), 376AB and 201 of the IPC, and under Sections 5 and 6 of the POCSO Act, are each established against the appellant upon the evidence on the record.

SECTION L- THE COMPLETE PICTURE

132. Before recording our conclusions, we think it right to draw together the several strands of the evidence into a single view, both because the true strength of a case of this nature is revealed only when its parts are seen as a whole, and because it is necessary to address the character of the evidence upon which our conclusion rests.

What is the case of the prosecution?

133. The case against the appellant is, upon its central events, a case of direct evidence. The throttling of the child was witnessed by the mother, who saw the appellant with both hands upon the throat of the child, and the sexual assault was spoken to by the victim herself in the disclosure she made to her mother. To this extent the case does not depend upon inference at all. But the direct evidence does not stand alone. It is embedded within, and is confirmed at every point by, a chain of incriminating circumstances, namely the medical evidence establishing a homicidal death by throttling and a recent sexual assault, the setting of the crime within a home whose only adult occupants were the appellant and the mother, the telephone record fixing the return of the appellant on the fatal day, his enquiry whether the child had spoken, his refusal of medical aid, his agitation upon discovery, his extra-judicial confession, and his attempt to procure an immediate burial. The case is therefore one of direct evidence powerfully corroborated by a complete chain of circumstances, and it is stronger than a case resting upon either alone.

Substantiated circumstantial evidence in this case

134. In so far as the case is supported by circumstantial evidence, we have borne in mind the settled conditions that such evidence must satisfy. This Court, in Sharad Birdhichand Sarda (Supra), laid down that the circumstances from which the conclusion of guilt is to be drawn must be fully established, that the facts so established must be consistent only with the hypothesis of the guilt of the accused, that the circumstances must be of a conclusive nature and tendency, that they must exclude every possible hypothesis except the one to be proved, and that there must be a complete chain of evidence so as to leave no reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances in the present case satisfy each of these conditions. Each circumstance we have relied upon is fully established upon the evidence. Taken together they are consistent only with the guilt of the appellant. And they exclude every reasonable hypothesis of innocence, for no hypothesis consistent with the innocence of the appellant can accommodate the throttling witnessed by the mother, the finger impressions upon the throat of the child, the fresh genital injury, the confession to the family, and the whole of the incriminating conduct, occurring as they did within a home in which the appellant was present and of which he has offered no true account. The chain is complete, and it points unerringly to the guilt of the appellant and to no one else.

Single witness appreciation and conviction based on that solitary testimony

135. When the established facts are marshalled and read as a connected whole, the picture that emerges admits of no innocent explanation. A widowed and illiterate woman brought her small daughter into the home of the appellant, a man whose three former wives had left him for his violence. Behind the walls of that home he preyed upon the child, silencing the mother by the threat that both would be buried and branded as having fled. The rape of the night of 21.04.2018, of which the child told her mother and which left the injury later found at the post-mortem, was followed by days in which the appellant denied the child the aid that might have saved her, and on 23.04.2018, his first concern being whether she had spoken, he throttled her with his own hands as the mother entered, and then sought to bury her at once, until the mother carried the body to her own family, where he confessed. Every piece of the evidence we have accepted falls into its place within this account, and no part of it can be reconciled with the innocence of the appellant.

136. We are conscious that the appellant stands convicted upon the testimony, in the main, of a single witness, and the anxious scrutiny that such a case demands has been present to our minds at every stage. But the mother of the victim is no chance witness of doubtful worth whose word is to be weighed with suspicion. She is a witness whose core account we have found to be true, and truth in her case does not stand alone, for it is confirmed by the injuries upon the body of her child, by the dying voice of the child herself, by the record of the calls with which she summoned the appellant on the fatal morning, by the confession he made to her family, and by his own conduct at every turn. Her account has been assailed from every direction, and it has held. Behind the walls of that home there were but two souls who could have told what was done within it, a child and her mother. The child the appellant silenced forever, with his hands about her throat. The mother he now seeks to silence in another way, by turning against her the very fear, the isolation and the dependence in which he had bound her, and by asking this Court to read the wounds of her captivity as the marks of a liar. That plea we reject, and we reject it without hesitation. A man may not first reduce a woman to silence and then claim acquittal from the silence he imposed, nor purchase his escape by blackening the one witness whom his own hand left behind to accuse him.

PART VIII- CONCLUSION ON CONVICTION

137. In the light of the analysis that precedes, we record our conclusions upon the points for determination that we framed at the outset.

138. Upon the first point, we hold that the infirmity which attended the recording of the evidence of the mother of the victim as PW-1 on 16.07.2018 stands effectively and completely cured by the further cross-examination conducted pursuant to the order of this Court dated 08.05.2025, the appellant having had a full and fair opportunity, through counsel of his own choice, to test her evidence upon a conjoint reading of her deposition dated 16.07.2018 and her further cross-examination dated 14.06.2025.

139. Upon the second point, we hold that the testimony of the mother of the victim upon the core events is reliable, and that it is corroborated in its material particulars by the medical evidence, by the disclosure of the victim, by the telephone record, by the extra-judicial confession of the appellant and by his conduct. The attacks upon her credibility have each been found to be without substance.

140. Upon the third point, we hold that the death of the victim is established to have been homicidal and to have been caused by asphyxia resulting from throttling, and that it was the appellant who throttled the victim to death.

141. Upon the fourth point, we hold that the appellant committed penetrative sexual assault upon the victim, a child below twelve years of age, and that the offence of aggravated penetrative sexual assault is established against him.

142. Upon the fifth point, we hold that the plea of alibi set up by the appellant does not cover the time of the offence of murder and does not answer the offence of sexual assault, that the counter-narrative spoken to by DW-3 is false and is irreconcilable with the medical evidence, and that the plea of fabrication is unsubstantiated. The defence, in each of its limbs, fails to raise a reasonable doubt upon the case established by the prosecution.

143. Upon the sixth point, we hold that the defects and the alleged mala fides in the investigation are not of such a character as to vitiate the prosecution case, which stands established upon evidence that we have found to be trustworthy and which does not enure to the benefit of the appellant.

144. Upon the seventh point, we hold that the offences under Sections 302, 376(2)(f), 376(2)(n), 376AB and 201 of the IPC, and under Sections 5 and 6 of the POCSO Act, are each established against the appellant beyond reasonable doubt.

145. In the result, we find no infirmity in the concurrent findings of the Trial Court and the High Court in so far as they hold the appellant guilty of the offences with which he was charged, and we affirm the conviction of the appellant under Sections 302, 376(2)(f), 376(2)(n), 376AB and 201 of the IPC and under Sections 5 and 6 of the POCSO Act. The conviction of the appellant is accordingly upheld.

146. There remains the question of sentence. The Trial Court imposed, and the High Court confirmed, the sentence of death upon the appellant for the offences under Section 376AB and Section 302 of the IPC. The correctness of that sentence, and the question whether, upon a consideration of the aggravating and the mitigating circumstances and of the material now placed before us, the sentence of death ought to be sustained or ought to be commuted, fall to be considered separately. We accordingly proceed to take up the question of sentence.

PART IX – THE QUESTION OF SENTENCE
SECTION M- THE SENTENCING PROCEEDINGS AND THE MATERIAL NOW BEFORE THE COURT

147. Having affirmed the conviction of the appellant, we come to the question upon which these appeals must ultimately turn, namely whether the sentence of death imposed upon the appellant by the Trial Court and confirmed by the High Court ought to be sustained, or whether it ought to be commuted to a sentence of imprisonment. This is the gravest question that a criminal court is ever called upon to decide, and it demands a scrutiny more thorough than any other, for the sentence of death is unique in its severity and in its irrevocability. Before we set out the law that governs the question and proceed to apply it, it is necessary to record the manner in which the question of sentence was dealt with by the courts below and the material that is now available to this Court, for the two are connected.

Importance of section 235(2) Cr.P.C is not an empty formality

148. We are constrained to observe, at the outset and with candour, that the manner in which the question of sentence was dealt with by the Trial Court did not conform to the standard that the law requires. The Trial Court convicted the appellant and sentenced him to death by its judgment dated 17.12.2018, that is, it recorded the conviction and imposed the sentence of death on one and the same day. Section 235(2) of the CrPC requires that after a judgment of conviction is pronounced, the accused shall be heard on the question of sentence before the sentence is passed upon him. This requirement is not an empty formality. In a case in which the sentence of death is a possible outcome, the hearing on sentence contemplated by Section 235(2) of the CrPC is intended to afford a real and meaningful opportunity to the accused to place before the court all the circumstances that bear upon the choice of sentence, including the circumstances personal to him that no one but he is in a position to bring forward. This Court, in Allaudin Mian v. State of Bihar, held that where the conviction is for an offence punishable with death, the court ought ordinarily not to impose the sentence on the same day on which the conviction is recorded, but should afford the accused a genuine opportunity, if necessary by adjourning the matter, to adduce material relevant to the question of sentence, and that the observance of this requirement is essential to the just exercise of the sentencing discretion. The recording of the conviction and the imposition of the sentence of death upon the appellant on the same day fell short of this requirement.

150. We record these deficiencies not by way of censure of the courts below, which decided the matter upon the material then before them, but because the identification of the deficiency is the first step towards its cure, and because the manner in which the question of sentence now falls to be decided by this Court is shaped by it. Just as the infirmity in the recording of the evidence of the mother of the victim was cured at the stage of these appeals by the further cross-examination that this Court directed, so too the deficiency in the sentencing exercise below has been cured at this stage by the reception of a full and comprehensive body of material bearing upon the question of sentence, and by a full hearing upon it.

153. The reception and consideration of such material at the stage of the appeal, where it was not placed before the courts below, is a course that this Court has adopted in a series of decisions in order that the sentencing decision may be made upon a complete and not a truncated record. In Mohd. Mannan v. State of Bihar, and in Manoj v. State of Madhya Pradesh, this Court called for and acted upon material of precisely this character, including reports upon the social and psychological background of the convict and upon his conduct in prison, in order to ensure that the choice between the sentence of death and the sentence of life imprisonment was made after a genuine and individualised consideration of the offender and not of the offence alone. We propose to decide the question of sentence in these appeals upon the same footing, that is, upon a fresh and independent consideration of the whole of the material now before us, giving to the material tendered on behalf of the appellant its full and fair weight, and applying to it the settled principles of law to which we now turn.

SECTION N- THE LAW GOVERNING THE SENTENCE OF DEATH

154. The choice between the sentence of death and the sentence of imprisonment for life, in a case in which the law permits the former, is governed by principles that have been settled by this Court over more than four decades, and it is necessary to set them out before we apply them, for the discipline of the sentencing exercise lies in the faithful application of a declared method rather than in an unstructured intuition.

Rarest of rare cases

156. The content of those special reasons was thoroughly expounded by the Constitution Bench of this Court in Bachan Singh v. State of Punjab, which remains the governing authority and the lens through which every subsequent decision is to be read. Several propositions established in Bachan Singh (Supra) are of immediate relevance to the present case. The first is that the sentence of death is constitutionally permissible only in the rarest of rare cases, that is, where the alternative of imprisonment for life is unquestionably foreclosed, the expression “rarest of rare” being not a rhetorical flourish but a substantive standard signifying that death is to be reserved for those exceptional cases in which no sentence short of death would meet the ends of justice. The second is that, in making the choice of sentence, the court is required to have regard to the aggravating and the mitigating circumstances both of the crime and of the criminal, so that the focus of the sentencing inquiry is not upon the crime alone but upon the crime and the criminal together, and a sentencing exercise that fixes its gaze upon the enormity of the crime while treating the circumstances of the criminal as immaterial is a departure from the very method that Bachan Singh (Supra) prescribes. The third is that the mitigating circumstances are to be construed liberally and expansively and full weight is to be given to them, for Bachan Singh (Supra) set out, by way of illustration and not of exhaustive enumeration, a range of mitigating factors, including the age of the accused, the probability that he can be reformed and rehabilitated, and the conditions under which he committed the offence, and directed that the court accord to these factors a generous and not a grudging consideration. The fourth is that the probability of reformation and rehabilitation is a factor of particular importance, and that the State bears the burden of leading evidence to establish that the accused is beyond the possibility of reform and is a continuing threat to society, so that where the State leads no such evidence, that circumstance tells in favour of the retention of the alternative of life imprisonment.

157. The principles of Bachan Singh (Supra) were given a practical structure by this Court in Machhi Singh v. State of Punjab, which identified the categories of cases in which the collective conscience of the community may be so shocked that the imposition of the sentence of death may be called for, being cases distinguished by the manner of the commission of the murder, the motive for it, the anti-social or abhorrent nature of the crime, the magnitude of the crime, and the personality of the victim, as for instance where the victim is an innocent child. Machhi Singh (Supra) directed that a balance sheet of aggravating and mitigating circumstances be drawn up, and that in doing so the mitigating circumstances be accorded full weightage, and it framed two questions to be answered before the sentence of death is imposed, namely whether there is something uncommon about the crime which renders the sentence of life imprisonment inadequate, and whether the circumstances of the crime are such that there is no alternative but to impose the sentence of death even after according maximum weightage to the mitigating circumstances which speak in favour of the offender. We shall answer both questions in due course.

161. From this line of precedents, the questions that this Court must answer, in the sequence in which we shall answer them, are these. First, what are the aggravating circumstances of the crime, and are they established. Second, what are the mitigating circumstances of the crime and of the criminal, taken at their fullest and fairest. Third, upon a weighing of the one against the other, and after according to the mitigating circumstances their full weight, is this a case in which the alternative of imprisonment for life, including imprisonment for the remainder of natural life or for a long term without remission, is unquestionably foreclosed, so that the sentence of death is the only sentence that would meet the ends of justice. It is to the first of these questions that we now turn.

Conclusion

201. For the reasons we have recorded, we are of the view that this is not a case in which the sentence of death ought to be sustained. The crime is of the utmost gravity, and it is marked by an exceptional aggravating feature, but the mitigating circumstances of the appellant are genuine and substantial, the possibility of his reformation has not been excluded by the State upon whom the burden lay, and the intermediate sentence of imprisonment for the remainder of his natural life, without remission, is available and is adequate to answer the gravity of the crime. In these circumstances the alternative of imprisonment for life is not unquestionably foreclosed, and the sentence of death cannot be sustained.

202. At the same time, the gravity of the crime, and in particular the sustained sexual violation of a child by her guardian and her killing to conceal that violation, is such that a sentence of imprisonment for life carrying the ordinary prospect of remission after fourteen years would be wholly inadequate to the ends of justice. This is pre-eminently a case for the exercise of the intermediate sentencing power recognised in Union of India v. V. Sriharan (Supra).

Sentence of death imposed is modified to remainder of his natural life and upon which no remission shall be granted

203. We accordingly commute the sentence of death imposed upon the appellant for the offences under Section 302 and Section 376AB of the IPC to a sentence of imprisonment for the remainder of his natural life, that is, imprisonment for life which shall extend to the whole of the remainder of his natural life and upon which no remission shall be granted. We affirm the sentences of imprisonment and fine imposed upon the appellant for the remaining offences under Sections 376(2)(f), 376(2)(n) and 201 of the IPC and Sections 5 and 6 of the POCSO Act. Having regard to Section 42 of the POCSO Act, the appellant shall be liable to punishment under that Act or under the corresponding provisions of the IPC, whichever is the greater in degree, and all the substantive sentences shall run concurrently.

204. We record that the sentence we have imposed is a sentence of the utmost severity, second only to the sentence of death, and that it will confine the appellant within the walls of a prison for the whole of the remainder of his life, without the prospect of release by way of remission. It is a sentence proportionate to the gravity of his crime, and it reflects the abhorrence with which the law regards what he did, while stopping short of the taking of his life in a case in which the possibility of his reformation has not been foreclosed.

205. The appeals are disposed of in the above terms.

Resource

Judgments referred or cited

1. Bachan Singh v State of Punjab (1980) 2 SCC 684 – Lays down that sentencing must weigh the criminal along with the crime, assigning zero weight to criminal is disobedience.

2. Machhi Singh v State of Punjab (1983) 3 SCC 470 – Explains categories and balancing of aggravating vs mitigating for rarest of rare.

3. Union of India v V Sriharan – Recognises Court power to impose full life term till end of natural life without remission as intermediate sentence.

4. Lochan Shrivas v State of Chhattisgarh (2022) 15 SCC 401 – In child rape-murder, death commuted considering young age, family background and no proof that reformation impossible.

5. Irappa Siddappa Murgannavar v State of Karnataka (2022) 2 SCC 801 – Death for rape-murder of minor where body hidden to cover crime altered to 30 years no remission for lack of antecedents and possibility of reform.

6. Vasanta Sampat Dupare v Union of India 2025 INSC 1043 – Death sentence even confirmed in review set aside because no separate individualized mitigation inquiry as mandated in Manoj.

7. Manoj v State of Madhya Pradesh – Makes individualized, evidence-based mitigation hearing mandatory before death.

8. Sharad Birdhichand Sarda v State of Maharashtra (1984) 4 SCC 116 – Standard test for appreciation of evidence.

9. Vadivelu Thevar v State of Madras (1957) 1 SCC 700 – How to appreciate testimony of related or interested witness.

10. Rajendra Pralhadrao Wasnik v State of Maharashtra (2019) 12 SCC 460 – Sentencing approach in child sexual assault murder cases.

Acts and Sections

IPC – 376(2)(f), 376(2)(i), 376(2)(n), 376AB, 302, 201, 300; CrPC – 161, 162, 164, 313, 354(3), 366, 367, 391, 235(2); BNSS – 408, 432; POCSO Act – Sections 5, 6, 8, 33(7), 42

Waris vs. The State of M.P 74312020_2026-09-24Download

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