# Chandan v. State of U.P. Opp. Party - **Citation:** (2023) 1 ILRA 665 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-12-19 - **Case number:** Connected with Reference No. 3 of 2021 - **Bench:** Manoj Misra, Sameer Jain - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandan-v-state-of-u-p-opp-party-49170 - **Pages:** 36 ## Headnote A. Criminal Law - Prevention of Children from Sexual Offence Act, 2012 - Sections 5(i)(m) & 6(1) - Indian Penal Code, 1860 - Sections 302, 376-A & 376-B - Death penalty - Medical report and FSL report were not put to accused to seek his explanation u/s 313 Cr.P.C. - Effect - The doubt that arises from the note put in the forensic report is not dispelled by the prosecution - The reports, how far have evidentiary value - Held, incriminating circumstance that neither the medical examination report of the appellant which discloses collection of undergarments nor FSL report were put to the appellant during his examination under Section 313 CrPC, have to be eschewed from consideration - Forensic report on which 666 INDIAN LAW REPORTS ALLAHABAD SERIES heavy reliance has been placed by the trial court to record conviction cannot form a valid piece of evidence as against the appellant. (Para 29, 71, 72 and 74) B. Criminal Law - Evidence Act,1872 - Section 106 - Circumstantial evidence - Reliability - Principle laid down - These circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of hypothesis other than that of the guilt of the accused and inconsistent with their innocence - Held, when the prosecution is successful in establishing a chain of incriminating circumstances leading to the logical inference that in all human probability it is the accused and accused alone who could have committed the crime, the burden shifts upon the accused to explain those circumstances and in absence whereof an adverse inference can be drawn against the accused with the aid of section 106 of the Evidence Act. (Para 41 and 45) C. Criminal trial - Last seen evidence, how far sufficient for conviction - Held, ordinarily, the circumstance of the deceased being last seen alive with the accused may alone not be sufficient to record conviction. (Para 44) D. Criminal trial - Prevention of Children from Sexual Offence Act, 2012 - Section 29 - Presumption against the accused - Benefit when available to prosecution - Held, benefit of the presumption would be available to the prosecution under Section 29 of the Act only when the foundational facts are proved by the prosecution by legally admissible evidence and that too, only in respect of offences specified therein. (Para 49 and 51) Appeal allowed. (E-1) List of Cases cited:- ## Text _Characters 0–39,948 of 127,365. This is a partial read: ask again with offset=39948 for what follows._ 1 All. Chandan Vs. State of U.P. 665 was merely to ensure their rehabilitation. The authorities having kept these inmates in the custody of Superintendent apparently lost track of them. PW-1, who is the official of the department of Women Development has admitted that he never visited Agra even once to look after the rehabilitation of forty three inmates in question. It appears that after a concern was raised by PW-2, the authorities suddenly woke up from their deep slumber and washed their hands by merely placing all responsibility upon the accused appellant. In our opinion the department of Women Development and the authorities under the Act of 1956 ought to have monitored the exercise to be undertaken for rehabilitation of these rescued inmates and some scheme/plans ought to have been formulated so as to ensure that these inmates are not forced again into immoral trafficking. Even at the stage of trial none from the office of concerned magistrate was produced nor the original records were exhibited. This shows callousness on part of the responsible officers in dealing with the plight of rescued workers. In the circumstances of the present case, we deem it appropriate to observe that the authorities entrusted with the task of rehabilitation of rescued sex workers must be made more responsive and appropriate schemes be formulated for protection and rehabilitation of the rescued workers. We hope and trust that the authorities of the State would give due attention to such serious concerns of well being of rescued workers so that the object of the Act of 1956 are fulfilled. 82. For the deliberations and discussions held above, this appeal succeeds and is allowed. The judgment and order dated 6.10.2018, passed by the Special Judge (POCSO Act)/VIII Additional Sessions Judge, Agra in Special Trial No. 1848 of 2017, is set-aside. The accused appellant, who is in jail since 1.6.2017, shall be set to liberty, forthwith, unless she is wanted in any other case, subject to compliance of Section 437A Cr.P.C. ---------- (2023) 1 ILRA 665 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 19.12.2022 BEFORE THE HON'BLE MANOJ MISRA, J. THE HON'BLE SAMEER JAIN, J. Connected with Reference No. 3 of 2021 Capital Case No. 4 of 2021 Chandan ...Appellant Versus State of U.P. ...Opp. Party Counsel for the Appellant: From Jail, Shweta Singh Rana, Sri Pradeep Kumar Mishra, Sri Vinay Saran(Sr. Advocate)(A.C.) Counsel for the Opp. Party: G.A. A. Criminal Law - Prevention of Children from Sexual Offence Act, 2012 - Sections 5(i)(m) & 6(1) - Indian Penal Code, 1860 - Sections 302, 376-A & 376-B - Death penalty - Medical report and FSL report were not put to accused to seek his explanation u/s 313 Cr.P.C. - Effect - The doubt that arises from the note put in the forensic report is not dispelled by the prosecution - The reports, how far have evidentiary value - Held, incriminating circumstance that neither the medical examination report of the appellant which discloses collection of undergarments nor FSL report were put to the appellant during his examination under Section 313 CrPC, have to be eschewed from consideration - Forensic report on which 666 INDIAN LAW REPORTS ALLAHABAD SERIES heavy reliance has been placed by the trial court to record conviction cannot form a valid piece of evidence as against the appellant. (Para 29, 71, 72 and 74) B. Criminal Law - Evidence Act,1872 - Section 106 - Circumstantial evidence - Reliability - Principle laid down - These circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of hypothesis other than that of the guilt of the accused and inconsistent with their innocence - Held, when the prosecution is successful in establishing a chain of incriminating circumstances leading to the logical inference that in all human probability it is the accused and accused alone who could have committed the crime, the burden shifts upon the accused to explain those circumstances and in absence whereof an adverse inference can be drawn against the accused with the aid of section 106 of the Evidence Act. (Para 41 and 45) C. Criminal trial - Last seen evidence, how far sufficient for conviction - Held, ordinarily, the circumstance of the deceased being last seen alive with the accused may alone not be sufficient to record conviction. (Para 44) D. Criminal trial - Prevention of Children from Sexual Offence Act, 2012 - Section 29 - Presumption against the accused - Benefit when available to prosecution - Held, benefit of the presumption would be available to the prosecution under Section 29 of the Act only when the foundational facts are proved by the prosecution by legally admissible evidence and that too, only in respect of offences specified therein. (Para 49 and 51) Appeal allowed. (E-1) List of Cases cited:- 1. Vijay Shankar Vs St. of Har.; (2015) 12 SCC 644 2. Sharad Birdhichand Sarda Vs St. of Mah.; (1984) 4 SCC 116 3. Bablu Vs St. of Raj.; (2006) 13 SCC 116 4. Shivaji Sahabrao Bobade & anr. Vs St. of Mah.; (1973) 2 SCC 793 5. Devi Lal Vs St. of Raj.; (2019) 19 SCC 447 6. Nizam Vs St. of Raj.; (2016) 1 SCC 550 7. Navneetakrishnan Vs St.; (2018) 16 SCC 161 8. St. of U.P. Vs Satish; (2005) 3 SCC 114 9. Ramreddy Rajesh Khanna Reddy & anr. Vs St. of A.P.; (2006) 10 SCC 172 10. Bodhraj Vs St. of J & K; (2002) 8 SCC 45 11. Shambu Nath Mehra Vs St. of Ajmer; AIR 1956 SC 404 12. Nagendra Sah Vs St. of Bihar; (2021) 10 SCC 725 13. Shivaji Chintappa Patil Vs St. of Mah.; (2021) 5 SCC 626 14. Raj. Vs Kashi Ram; (2006) 12 SCC 254 15. Capital Cases No.13 of 2021; Monu Thakur Vs St. of U.P. decided on March 14, 2022 (Delivered by Hon'ble Manoj Misra, J.) 1. By the impugned judgment and order dated 18.01.2021 /20.01.2021 passed by Special Judge (Pocso Act)/ Additional District and Sessions Judge, Ghaziabad in Case No.313 of 2020, arising out of Case Crime No.1470 of 2020, P.S. Kavi Nagar, District Ghaziabad, the appellant has been convicted under Sections 302, 376-A, 376AB, 201 IPC and Section 5(i)(M)/6(1) of Protection of Children from Sexual Offences Act (Pocso Act) and as the offences punishable under Sections 376-A, 376-AB IPC and Section 5(i)(m)/ 6(1) of Pocso Act were offences of the same nature, upon noticing that the sentence under Section 5(i)(m)/ 6(1) of the Pocso 1 All. Chandan Vs. State of U.P. 667 Act is greater, in light of the provisions of Section 42 of the Pocso Act, the appellant has been punished as follows:- (i) Death penalty under Section 5(i)(m)/6(1) of Pocso Act; (ii) Imprisonment for life as well as fine of Rs. 1,00,000/- under Section 302 IPC; Seven years R.I. as well as fine of Rs.50,000/- under Section 201 IPC, coupled with default sentence of additional one year. 2. As death penalty was awarded by the trial court, the trial court submitted a reference under section 366 of the Code of Criminal Procedure, 1973 for confirmation of death penalty, which has been registered as Reference No.3 of 2021. 3. The convicted accused requested the Jail Authorities to forward his appeal against the order of conviction and sentence, as a result whereof, the Jail Superintendent, District Jail, Ghaziabad has forwarded the appeal of the appellant vide letter dated 25.01.2021 giving rise to Capital Cases No.4 of 2021. 4. This appeal was earlier heard by a Bench comprising Pankaj Naqvi, J. and Naveen Srivastava, JJ. After hearing the counsel for the parties, on 19.07.2021 the judgment was reserved. However, instead of pronouncing the judgment, the matter was directed to be listed for further hearing and, ultimately, was directed to be put up before appropriate Bench. Thereafter we heard the matter and reserved the judgment. But before we could deliver the judgment our Bench was dissolved, consequently, the judgment could not be delivered. Whereafter, the matter was again nominated to us by order of the Chief Justice dated 24.11.2022. On 9.12.2022 we heard the matter again and reserved the judgment, which is now being delivered. 5. We have heard Sri Vinay Saran, learned Senior Counsel, as Amicus Curiae, assisted by Sri Pradeep Kumar Mishra, for the appellant; and Sri J.K. Upadhyay, learned AGA, for the State. 6. Considering the nature of the crime, we are not disclosing the name of the victim /members of her family including the witnesses of that area therefore, wherever required they have been described by a pseudo name or their witness number. INTRODUCTORY FACTS 7. A written report (Ex. Ka-1) was submitted by PW-1 (the father of the victim) at P.S. Kavi Nagar, District Ghaziabad on 20.10.2020, at 14.34 hrs, giving rise to Case Crime No.1470 of 2020. The written report was scribed by nephew of the informant, namely, PW-3. In the written report it is alleged as follows: that the informant is a resident of Bihar; he had been residing with his wife and children in a rented accommodation in the industrial area of Kavi Nagar, District Ghaziabad, which is owned by X; that the accusedappellant, who is also a resident of Bihar, had been regularly visiting informant's house for the last 10 years; that on 19.10.2020, the informant, the accusedappellant and two others, namely, ''Y' and ''Z' were having drinks (liquor) at / near informant's house; during the course of the drinking session, the accused-appellant at about 8.00 pm went to informant's room, asked informant's wife (PW-2) to handover informant's younger daughter i.e. the victim, aged about 21⁄2 years, and took the victim away under the pretext that he would play with her; that when the informant entered his room, his wife (PW2) told the informant that the accused- 668 INDIAN LAW REPORTS ALLAHABAD SERIES appellant has taken the victim to play with her; that, thereafter, the entire night, along with the police, a search for the victim was made; that next day i.e. 20.10.2020, at about 12.30 hrs, information was received that dead body of the victim has been found near a drain adjoining Beer Factory Road close to RTO office. By alleging that the informant has reason to believe that the accused-appellant has raped and killed informant's daughter, the aforesaid written report was registered as a first information report (FIR). 8. After the FIR was lodged, inquest was conducted on 20.10.2020 and completed by 15.30 hrs. Inquest report (Ex. Ka-2) was prepared by S.I. Mehak Singh Baliyan (PW-6). PW-1 (the informant), PW-4 (aunt of the victim) and PW-3 (the nephew of the informant and scribe of the written report) were, inter alia, witnesses of the inquest report. The inquest report recites that the body of the victim was naked and near the body a yellow coloured frock was lying. The entire body including face and private parts disclosed marks of injuries. 9. On 20.10.2020, at about 7 pm, a team of doctors, of which PW-7 and PW-8 were part, conducted autopsy of the cadaver. The relevant features of the autopsy report (Ex. Ka-5) are as follows:- Age: 2 1⁄2 years. Sex: Female. External General Appearance (i) General appearance: Average body found nude. Eyes congested, Nails cyanosed, Tongue clenched between teeth. (ii) Rigor mortis present all over body. Ante-mortem external injuries:- (i) Abraded contusion (multiple) 12 cm x 6 cm on anterior region of neck (max: 5 cm x 1 cm, min: 1 cm x 0.5 cm). Contusion mark is 6 cm below from right ear, 4 cm below from chin and 4 cm below from left ear. On suction effusion of blood under deeper tissues is present. (ii) Contusion 10 cm x 7 cm on left cheek. (iii) Contusion 9 cm x 6 cm on right cheek. (iv) Abraded contusion 2 cm x 2 cm over and above the tip of nose. (v) Multiple abraded contusion 19 cm x 10 cm (max: 1 cm x 1 cm and min: 0.5 cm x 0.5 cm) on both side of chest just below the clavicle. (vi) Multiple abraded contusion 35 cm x 18 cm (max 5 cm x 0.5 cm and min 0.5 cm x 0.5 cm) on back of chest and abdomen both side. (vii) Contusion 1 cm x 1 cm anterior region of left elbow joint. (viii) Contusion 1.5 cm x 0.5 cm right thigh inner side, 13 cm above right knee joint. Internal examination:- (i) Trachea congested. Tracheal ring fractured; hyoid bone fractured. (ii) About 50 ml semi digested food present in stomach. Small Intestine: Digested food and gases. Liver: congested. Gallbladder: half full and congested. (iii) Uterus empty swelling over vulval area. Hymen ruptured. Contusion present in inner aspect of vulval region. (iv) Rectovaginal tearing present. Time since death: About one day. 1 All. Chandan Vs. State of U.P. 669 Cause and manner of death: Asphyxia as a result of ante-mortem throttling. 10. As per autopsy report following items were preserved for forensic examination/ DNA analysis:- (i) one frock, (ii) one tooth, (iii) one pair vaginal slide (iv) one vaginal swab, (v) one pair anal slide, (vi) and one anal swab, (vii) one pair oral slide (viii) one oral swab, (ix) nail scrape and (x) one hair present on pubic area. All items were sealed and handed over to concerned constable for spermatozoa and further examination. 11. During the course of investigation, the site plan of the place from where the body was recovered was prepared which was proved by PW-9 and exhibited as Ex. Ka-6. The index of the site plan (Ex. Ka-6) would suggest that it was an open place having access to all. It also suggests that near the place where the body was found, empty pouches of salted snacks, an empty water bottle and two one rupee coin was noticed. The index of the site plan suggests that wet soil and plain soil was lifted from there. It be noted that a seizure memo of these articles lifted from the spot was also prepared by PW-9, which was marked as Ex. Ka-7. 12. On 20.10.2020, Mehak Singh Baliya (PW-6) effected arrest of the accused from near Atma Ram Steel Underpass, Kavi Nagar. The arrest memo (Ex. Ka-4) prepared pursuant to directions issued by the Apex Court in D.K. Basu's case, reflects the date and time of arrest as 20.10.2020 and 21.50 hrs, respectively. It bears the signature of the accused and carries an acknowledgement of the arrested person (i.e. the appellant) that he was subjected to medical examination and that on the medical report, his thumb impression has been obtained and that a copy thereof has been handed over to the arrested person. This medical report of the accused-appellant is there on record as paper no.6-Ka but the doctor who examined the appellant has not been examined as a witness and is also not separately marked as an exhibit in the record of the court below. But since in the arrest memo which has been exhibited it is stated that the accused was medically examined at the time of arrest and was given the injury report we propose to notice the contents of the injury report. The injury report reflects that the medical examination of the accused-appellant was conducted on 20.10.2020 at 11.30 pm. At the time of his medical examination, the doctor noticed following injuries:- (i) Contusion at left forearm, size 10 cm x 5 cm just above left wrist joint. (ii) Contusion at right forearm, size 9 cm x 5 cm just above right wrist joint. (iii) Contusion at left thigh (posterior), size 10 cm x 6 cm: 10 cm above left knee joint. (iv) Contusion at right thigh (posterior), size 11 cm x 6 cm: 10 cm above right knee joint. (v) Contusion at posterior of left lower leg, size 8 cm x 5 cm. (vi) Contusion at posterior of right lower leg. Size 8 cm x 5 cm. (vii) Contusion at left buttock, size 10 cm 5 cm. Injuries are simple in nature caused by hard and blunt object. It be noted that blood sample and undergarments of the accused-appellant were taken for the purposes of DNA profiling along with his oral smear, penile 670 INDIAN LAW REPORTS ALLAHABAD SERIES swab and swabs from urethral meatus, frenulum, glans, scrotum, shaft, perineum and nail clipping. 13. On 21.10.2020, the investigating officer - Nagendra Chaubey (PW-9- the I.O.) recorded the statement of the witnesses including the statement of Mehak Singh Baliyan who carried out the inquest proceeding and on 22.10.2020 the I.O. inspected the spot where the accused, the informant and others were having their drinks and prepared site plan (Ex. Ka-8). On the same day, I.O. also obtained CCTV footage from the owner of the premises and a seizure memo in respect thereof was prepared as Ex. Ka-9. On 24.10.2020, I.O. entered the postmortem report in the CD and recorded the statement of the doctors who were part of the team of doctors that carried out autopsy of the cadaver. On 26.10.2020, vide Parcha No.5, the materials collected were sent for forensic examination to FSL, Ghaziabad. 14. On 16.11.2020, the investigation of the case was assigned to Ajay Kumar Singh (PW-10). PW-10 sent reminder letters on 21.11.2020 and 01.12.2020 for providing forensic reports. On 16.12.2020, upon finding sufficient material against the accusedappellant, charge sheet (Ex. Ka-10) was submitted. On 05.01.2021, report was obtained from the Forensic Laboratory, Ghaziabad which was entered in the supplementary case diary and the report was filed in court as paper No.25-Ka/3. 15. After taking cognisance, on 24.12.2020 the Special Court, Pocso Act charged the appellant for commission of offences punishable under Sections 376-A, 376-AB, 302 and 201 IPC and Section 5(i)(M)/6(1) of the Pocso Act. The accusedappellant denied the charges and claimed trial. PROSECUTION EVIDENCE 16. During trial, the prosecution examined 10 witnesses. Their testimony, in brief, is as under:- 17. PW-1 - the informant - father of the deceased/victim. - He stated that on 19.10.2020 he along with the accusedappellant and two others were having drinks (liquor) at the ground level near his apartment. While they were having liquor, the accused-appellant stood up, went to informant's room and took away informant's daughter under the pretext that he would be playing with her. When PW-1 went to his apartment, his wife (PW-2) informed that the accused has taken the victim to play with her. Thereafter, PW-1 along with the police searched for the victim in the night but could not find her. PW-1 stated that on 20.10.2020, at about 12.30 hrs, he got information that his daughter (the victim) is lying dead near a drain close to the R.T.O Office on the Beer factory road. He proved the written report (Ex. Ka-1). During cross examination, PW-1 stated that they were having liquor at about 8 pm on the ground floor, below his own apartment, in the room of ''Y'; ''Y' used to stay alone in his room and his family used to reside in the village; liquor bottle was brought by the accused-appellant; it was country made liquor; PW-1 entered that room with his own liquor pouch at about 8.30 pm whereas, the accused-appellant and ''Y' were having their drinks since day time and were totally drunk but were in a position to walk. While they were having drinks, between 8.45 and 9 pm, accusedappellant stood up and went, saying that he is going to his room. When PW-1 reached his apartment at about 9.30 pm, he was 1 All. Chandan Vs. State of U.P. 671 informed that the accused-appellant had come and had taken the victim under the pretext that he was taking her to PW-1. PW-1 added that the accused did not bring his daughter to him. He then stated that the accused-appellant stays nearby at "Bhatia Mod" (crossing) but his family use to reside in the village and he used to stay near one of his friends about whom he has no knowledge. PW-1 added that he first met the accused-appellant in Ghaziabad and had been in touch with him for the last 10-12 years in as much as they were both from Bihar and used to work as labourers. He, however, clarified that the accusedappellant and he were not regular visitors to each other's house though, on a few occasion he had called the accusedappellant over to his house to have food. On further cross examination, in respect of the night of the incident, PW-1 stated that after he had searched for the victim in the lanes of the area, in the night of 19.10.2020 itself, he gave written information to the police. At that time, along with him his Bhabhi, nephew, brother and sister were there. He stated that when they had lodged the report it must be about mid-night of 19/20.10.2020 whereas the body of the victim was found next day (i.e. 20.10.2020) around noon time (12 hrs). In respect of discovery of the body of the deceased, PW-1 stated that "fn0 20 rkjh[k dks feyh FkhA esjh csVh vkjk/;k dh MsM ckMhiqfyl okyksa dks feyh FkhA iqfyl okyksa us gesa lwpuk nh Fkh tgka ij cPphdh MsM ckMh feyh Fkh ogak ij njksxk th us fy[kr i