Chattisgarh High Court
Bablu Kalmoom vs State Of Chhattisgarh on 9 April, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
Digitally
2026:CGHC:16354-DB
signed by
ANURADHA
ANURADHA TIWARI AFR
TIWARI Date:
2026.04.10
10:37:25
+0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 614 of 2023
Bablu Kalmoom S/o - Shri Mangu Kalmoom Aged About 19 Years
Gadamali, Police Station - Jangla, District : Bijapur, Chhattisgarh
... Appellant
versus
State of Chhattisgarh Through- Police Station- Jangla, District : Bijapur,
Chhattisgarh
... Respondent
(Cause-title taken from Case Information System)
For Appellant : Mr. Dinesh Tiwari, Advocate holding brief
of Mohd. Azad Siddiqui, Advocate
For State/Respondent : Mr. Shailendra Sharma, Panel Lawyer
Hon’ble Shri Ramesh Sinha, Chief Justice
Hon’ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
09.04.2026
1. Heard Mr. Dinesh Tiwrai, learned counsel holding brief of Mohd.
Azad Siddiqui, learned counsel for the appellant as well as
Mr. Shailendra Sharma, learned Panel Lawyer, appearing for the
State/respondent.
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2. Today, though the criminal appeal has been listed for hearing on
I.A. No.01, application for suspension of sentence and grant of
bail to the appellant, however, with the consent of learned counsel
for the parties, the appeal is heard finally as the appellant is in jail
since 19.01.2020.
3. Accordingly, I.A. No.01, application for suspension of sentence
and grant of bail to the appellant, stands disposed of.
4. This criminal appeal is filed by the appellants/accused under
Section 374(2) of the Code of Criminal Procedure, 1973 (for short,
‘Cr.P.C.’) is directed against the impugned judgment of conviction
and order of sentence dated 22.12.2022 passed by the learned
Additional Sessions Judge (F.T.C.), South Bastar Dantewada
(C.G.) in Special Case (POCSO) No.10/2020, whereby the
appellant/accused have been convicted for the offence punishable
under Section 302 of the Indian Penal Code, 1860 (for short,
‘IPC‘) and sentenced to undergo imprisonment for life and fine of
Rs.2,000/-, in default of payment of fine amount, additional
rigorous imprisonment for one year as well as under Section 376
(AB) of the IPC and 6 of the Protection of Children from Sexual
Offences Act, 2012 (for short, ‘POCSO Act‘) and sentenced to
undergo imprisonment for life till natural death and fine of
Rs.2,000/-, in default of payment of fine amount, additional
rigorous imprisonment for one year, respectively, and it is directed
that both the sentences were run concurrently.
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5. The prosecution case, as emerging from the record, is that on
13.01.2020, the deceased, a minor girl, had proceeded towards
the market. At that point of time, her grandmother, examined as
PW-08, objected to her going alone and attempted to restrain her.
It is the case of the prosecution that the accused intervened and
assured the grandmother that he would accompany the deceased
to the market and safely bring her back home. Acting upon such
assurance, the deceased was permitted to go along with the
accused. However, thereafter, the deceased went missing, and
subsequently, information was received regarding the recovery of
a dead body. Upon reaching the spot, the relatives of the
deceased, including PW-07 and PW-13, identified the body as
that of the missing girl.
6. At the place of occurrence itself, a village intimation of unnatural
death (Dehati Merg) was recorded vide Ex.P/18, and a preliminary
complaint (Dehati Nalishi) was registered vide Ex.P/17 against the
accused for the offence punishable under Section 302 of the
Indian Penal Code. Prior to conducting the inquest proceedings,
notices were issued to the witnesses under Section 175 of Cr.P.C.
vide Ex.P/4, and thereafter, the inquest panchnama was prepared
vide Ex.P/13. The body of the deceased was sent for post-mortem
examination vide requisition Ex.P/29, and upon completion
thereof, the post-mortem report was brought on record as
Ex.P/54, after which body was handed over to family members.
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7. During the course of investigation, the spot was inspected and a
detailed spot inspection report was prepared vide Ex.P/53, along
with the spot map vide Ex.P/12, proved by PW-16 (Investigating
Officer) and PW-06 (Patwari). From the place of occurrence,
several incriminating articles were seized under seizure memos
Ex.P/14 and Ex.P/33, including the undergarment of the
deceased, her ring, plain soil, blood-stained soil, cotton swabs
containing blood collected from the genital and thigh region, and
plain cotton. On the basis of the Dehati Merg, a formal merg
intimation was recorded vide Ex.P/31, and on the basis of the
Dehati Nalishi, a formal First Information Report was registered
vide Ex.P/32 at Police Station Jangla.
8. The accused was apprehended and taken into custody vide arrest
memo Ex.P/25, and his disclosure statement was recorded, which
led to recovery of incriminating articles. Pursuant to his
memorandum, a bicycle and the undergarment allegedly worn by
him at the time of the incident were seized vide seizure memo
Ex.P/7, duly proved by PW-05 and PW-18. The accused was also
subjected to medical examination vide Ex.P/6, and his blood
sample was collected pursuant to permission granted by the
competent authority vide Ex.P/36 to Ex.P/38. The age of the
deceased was established through documentary evidence,
including the Anganwadi register, exhibited as Ex.P/15C, thereby
proving that she was a minor at the time of the incident.
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9. The medical evidence was adduced through PW-17 Dr. Deepika
Sinha and PW-19 Dr. B. Suri Babu, who conducted the medical
and post-mortem examination. The post-mortem report Ex.P/54
and related medical documents Ex.P/30 reveal that various
samples, including smear slides, vaginal swabs, vaginal slides,
vaginal mucosa, blood samples in EDTA vial, and hair samples
were preserved. All seized articles, including the biological
samples of the deceased and the accused, were forwarded for
forensic examination vide memos Ex.P/46, Ex.P/47 and Ex.P/48,
and the DNA test report along with covering memo was brought
on record as Ex.P/51 and Ex.P/52. The forwarding and receipt of
exhibits were proved vide Ex.P/49 and Ex.P/50.
10. During the course of investigation, statements of material
witnesses, including PW-01 to PW-15, were recorded under
Section 161 Cr.P.C., which were duly exhibited as Ex.P/5, Ex.P/16
to Ex.P/26 and Ex.P/55. Upon completion of investigation, a
charge-sheet was filed against the accused for offences
punishable under Sections 302 and 376 of the Indian Penal Code
and Section 6 of the Protection of Children from Sexual Offences
Act, 2012. Upon perusal of the material available on record, the
Trial Court found that a prima facie case was made out and
accordingly framed charges under Sections 376(AB) and 302 IPC
and Section 6 of the POCSO Act, which were read over and
explained to the accused, who denied the same and claimed trial.
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11. During the course of trial, prosecution examined PW-1 to PW-20
and exhibited documents Ex.P/1 to Ex.P/55 in support of its case.
The statement of the accused under Section 313 of the Cr.P.C.
was recorded, wherein he denied all the incriminating
circumstances appearing against him and claimed to be innocent.
The accused did not adduce any evidence in defence, and
accordingly, the defence evidence was closed. In view of the
material available on record, the Trial Court proceeded to consider
whether the prosecution had succeeded in proving the guilt of the
accused beyond reasonable doubt with respect to the offences
alleged against him.
12. The trial Court after completion of trial and after appreciating oral
and documentary evidences available on record, by the impugned
judgment dated 22.12.2022 convicted and sentenced the
appellant in the manner mentioned in the fourth paragraph of this
judgment, against which this appeal under Section 374(2) of the
Cr.P.C. has been preferred by them calling in question the
impugned judgment.
13. Mr. Dinesh Tiwari, learned counsel appearing on behalf of the
appellant, submits that the impugned judgment of conviction and
sentence dated 22.12.2022 passed by the learned Trial Court is
wholly unsustainable in law as well as on facts. It is contended
that the findings recorded by the Trial Court are perverse, contrary
to the evidence available on record and suffer from serious
7
infirmities, thereby rendering the conviction of the appellant liable
to be set aside. The learned counsel would submit that the Trial
Court has failed to appreciate the evidence in its proper
perspective and has proceeded on assumptions and conjectures.
14. It is further submitted by Mr. Tiwari that the appellant has been
falsely implicated in the present case. The appellant is an illiterate
person belonging to a tribal area and was unaware of the
implications of the criminal proceedings. He submits that the
entire prosecution case rests on circumstantial evidence, there
being no eyewitness to the alleged incident. Despite this, the
prosecution has failed to establish a complete chain of
circumstances so as to unerringly point towards the guilt of the
appellant. It is contended that the essential ingredients of the
offences alleged, particularly the element of mens rea and
criminal culpability, have not been proved beyond reasonable
doubt.
15. Mr. Tiwari contends that the conviction of the appellant is based
almost entirely on the DNA profiling report, exhibited as Ex.P/51
and Ex.P/52, without there being any substantive corroborative
evidence. It is argued that although the Investigating Officer (PW-
16) seized certain articles, including the undergarment of the
prosecutrix, ring, plain soil, blood-stained soil and cotton swabs
from the thigh region under seizure memo Ex.P/33, and the same
were sent to the Forensic Science Laboratory, Raipur, the
8
prosecution has failed to establish the link evidence and the chain
of custody in a reliable manner. In the absence of independent
corroboration, reliance solely on the DNA report, without proving
the surrounding circumstances, is unsafe and insufficient to
sustain conviction.
16. It is also submitted by Mr. Tiwari that the prosecution has failed to
prove any motive on the part of the appellant, and the entire case
is based on presumptions rather than legally admissible and
cogent evidence. Learned counsel argues that in criminal
jurisprudence, the burden lies heavily upon the prosecution to
prove the case beyond all reasonable doubt, and unless the chain
of circumstances is complete and consistent only with the
hypothesis of guilt of the accused, the conviction cannot be
sustained. In the present case, the prosecution has failed to
discharge this burden, and the Trial Court has erred in shifting the
burden upon the appellant.
17. In support of his submissions, learned counsel for the appellant
has placed reliance upon the judgment of the Hon’ble Supreme
Court in Ashok v. State of Uttar Pradesh, 2024 SCC OnLine SC
3580 to buttress his submissions and contended that the present
case is a fit case where benefit of doubt ought to have been
extended to the appellant. Lastly, it is prayed that the appeal be
allowed and impugned judgment passed by the learned Trial
Court is set-aside.
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18. Per-contra, Mr. Shailendra Sharma, learned Panel Lawyer Per
contra, learned State counsel vehemently opposes the
submissions advanced on behalf of the appellant submits that the
judgment passed by the learned Trial Court is well-reasoned,
based on proper appreciation of oral as well as documentary
evidence, and does not suffer from any perversity or illegality
warranting interference by this Court in exercise of appellate
jurisdiction. The learned State counsel submits that the
prosecution has successfully established the guilt of the appellant
beyond all reasonable doubt by leading cogent, reliable and
clinching evidence.
19. It is further submitted by Mr. Sharma that although there is no
direct eyewitness to the incident, the present case is based on a
complete and unbroken chain of circumstantial evidence which
unequivocally points towards the guilt of the appellant. The “last
seen” circumstance has been duly proved through the testimony
of PW-08 (grandmother of the deceased), who categorically
stated that the appellant had taken the deceased along with him
on the pretext of accompanying her to the market. This crucial
circumstance has remained unshaken in cross-examination and
firmly establishes that the deceased was last seen alive in the
company of the appellant. The appellant has failed to offer any
plausible explanation under Section 313 of the Cr.P.C. regarding
the circumstances under which the deceased parted company
10
with him, thereby giving rise to a strong adverse inference against
him.
20. Mr. Sharma further submits that the medical and forensic
evidence conclusively corroborates the prosecution case. The
post-mortem report Ex.P/54, proved by PW-19 Dr. B. Suri Babu,
clearly establishes that the death of the deceased was homicidal
in nature. Further, the evidence of PW-17 Dr. Deepika Sinha
supports the case of sexual assault. It is contended that the
biological samples collected from the body of the deceased and
the articles seized from the spot and the accused were
scientifically examined, and the DNA profiling report Ex.P/51 and
Ex.P/52 conclusively establishes that the biological material found
on the seized articles matched with the DNA profile of the
appellant. Thus, the presence of the appellant at the scene of
crime and his involvement in the commission of the offence
stands scientifically established.
21. It is also submitted by Mr. Sharma that the seizure of incriminating
articles, including the undergarment of the deceased, blood-
stained soil and other materials, was duly proved through seizure
memo Ex.P/33 and the testimony of the Investigating Officer PW-
16, and there is no material contradiction or discrepancy so as to
discredit the same. The chain of custody of the seized articles has
been properly maintained, and the same were duly sent to the
Forensic Science Laboratory through proper channel, as
11
evidenced by Ex.P/46, Ex.P/47, Ex.P/48, Ex.P/49 and Ex.P/50.
The defence has failed to point out any material lapse in the
investigation which could go to the root of the matter.
22. It is contended by Mr. Sharma that the argument of the appellant
that the conviction is based solely on DNA evidence is
misconceived and factually incorrect. The DNA evidence in the
present case is not in isolation but forms a part of a larger chain of
circumstances, including the last seen evidence, recovery of
incriminating articles at the instance of the appellant, medical
evidence establishing sexual assault and homicidal death, and the
failure of the appellant to furnish any explanation for the
incriminating circumstances appearing against him. All these
circumstances, when taken together, form a complete chain
pointing unerringly towards the guilt of the appellant. It is also
submitted that the prosecution has duly proved that the deceased
was a minor at the time of the incident through documentary
evidence, including the Anganwadi register Ex.P/15C, thereby
attracting the provisions of the Protection of Children from Sexual
Offences Act, 2012. The learned Trial Court has rightly
appreciated the evidence and recorded a finding of guilt under
Sections 376(AB) and 302 of the Indian Penal Code as well as
Section 6 of the POCSO Act.
23. In conclusion, it is submitted by Mr. Sharma that the prosecution
has successfully proved its case beyond all reasonable doubt,
12
and the findings recorded by the Trial Court are based on sound
appreciation of evidence. There is no infirmity, illegality or
perversity in the impugned judgment warranting interference by
this Court. Accordingly, the appeal filed by the appellant deserves
to be dismissed.
24. We have heard learned counsel for the parties and considered
their rival submissions made herein-above and also went through
the original records of the trial Court with utmost circumspection.
25. In light of the submissions advanced by learned counsel for the
parties and upon perusal of the record of the Trial Court, the
following points arise for determination in the present appeal:
(i) Whether, on the date of the incident, the victim/deceased
was a “child” within the meaning of Section 2(1)(d) of the
POCSO Act ?
(ii) Whether the appellant is the author of the crime and has
committed the offences punishable under Sections 376(AB)
Point for Determination
(i) Whether, on the date of the incident, the victim/deceased was a
“child” within the meaning of Section 2(1)(d) of the POCSO Act ?
26. When a person is charged for the offence punishable under the
POCSO Act, or for rape punishable in the Indian Penal Code, the
13
age of the victim is significant and essential ingredient to prove
such charge and the gravity of the offence gets changed when the
child is below 18 years, 12 years and more than 18 years. Section
2(d) of the POCSO Act defines the “child” which means any
person below the age of eighteen years.
27. In Jarnail Singh Vs. State of Haryana, (2013) 7 SCC 263, the
Hon’ble Supreme Court laid down the guiding principles for
determining the age of a child, which read as follows:
“22. On the issue of determination of age of a
minor, one only needs to make a reference to
Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007
(hereinafter referred to as the 2007 Rules).
The aforestated 2007 Rules have been
framed under Section 68(1) of the Juvenile
Justice (Care and Protection of Children) Act,
2000. Rule 12 referred to hereinabove reads
as under :
“12. Procedure to be followed in
determination of Age.? (1) In every case
concerning a child or a juvenile in conflict
with law, the court or the Board or as the
case may be the Committee referred to in
rule 19 of these rules shall determine the
age of such juvenile or child or a juvenile in
conflict with law within a period of thirty
days from the date of making of the
application for that purpose.
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(2) The court or the Board or as the case
may be the Committee shall decide the
juvenility or otherwise of the juvenile or the
child or as the case may be the juvenile in
conflict with law, prima facie on the basis of
physical appearance or documents, if
available, and send him to the observation
home or in jail.
(3) In every case concerning a child or
juvenile in conflict with law, the age
determination inquiry shall be conducted by
the court or the Board or, as the case may
be, the Committee by seeking evidence by
obtaining –
(a) (i) the matriculation or equivalent
certificates, if available; and in the
absence whereof;
(ii) the date of birth certificate from the
school (other than a play school) first
attended; and in the absence whereof;
(iii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;
(b) and only in the absence of either (i),
(ii) or (iii) of clause (a) above, the
medical opinion will be sought from a
duly constituted Medical Board, which
will declare the age of the juvenile or
child. In case exact assessment of the
age cannot be done, the Court or the
Board or, as the case may be, the
Committee, for the reasons to be
15recorded by them, may, if considered
necessary, give benefit to the child or
juvenile by considering his/her age on
lower side within the margin of one year.
and, while passing orders in such case
shall, after taking into consideration such
evidence as may be available, or the
medical opinion, as the case may be,
record a finding in respect of his age and
either of the evidence specified in any of
the clauses (a)(i), (ii), (iii) or in the
absence whereof, clause (b) shall be the
conclusive proof of the age as regards
such child or the juvenile in conflict with
law.
(4) If the age of a juvenile or child or the
juvenile in conflict with law is found to be
below 18 years on the date of offence, on
the basis of any of the conclusive proof
specified in sub-rule (3), the court or the
Board or as the case may be the
Committee shall in writing pass an order
stating the age and declaring the status of
juvenility or otherwise, for the purpose of
the Act and these rules and a copy of the
order shall be given to such juvenile or the
person concerned.
(5) Save and except where, further inquiry
or otherwise is required, inter alia, in terms
of section 7A, section 64 of the Act and
these rules, no further inquiry shall be
conducted by the court or the Board after
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examining and obtaining the certificate or
any other documentary proof referred to in
sub-rule (3) of this rule.
(6) The provisions contained in this rule
shall also apply to those disposed off
cases, where the status of juvenility has not
been determined in accordance with the
provisions contained in sub- rule(3) and the
Act, requiring dispensation of the sentence
under the Act for passing appropriate order
in the interest of the juvenile in conflict with
law.”
23. Even though Rule 12 is strictly applicable
only to determine the age of a child in conflict
with law, we are of the view that the aforesaid
statutory provision should be the basis for
determining age, even for a child who is a
victim of crime. For, in our view, there is
hardly any difference in so far as the issue of
minority is concerned, between a child in
conflict with law, and a child who is a victim of
crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule
12 of the 2007 Rules, to determine the age of
the prosecutrix VW-PW6. The manner of
determining age conclusively, has been
expressed in sub-rule (3) of Rule 12 extracted
above. Under the aforesaid provision, the age
of a child is ascertained, by adopting the first
available basis, out of a number of options
postulated in Rule 12(3). If, in the scheme of
options under Rule 12(3), an option is
17
expressed in a preceding clause, it has
overriding effect over an option expressed in
a subsequent clause. The highest rated
option available, would conclusively
determine the age of a minor. In the scheme
of Rule 12(3), matriculation (or equivalent)
certificate of the concerned child, is the
highest rated option. In case, the said
certificate is available, no other evidence can
be relied upon. Only in the absence of the
said certificate, Rule 12(3), envisages
consideration of the date of birth entered, in
the school first attended by the child. In case
such an entry of date of birth is available, the
date of birth depicted therein is liable to be
treated as final and conclusive, and no other
material is to be relied upon. Only in the
absence of such entry, Rule 12(3) postulates
reliance on a birth certificate issued by a
corporation or a municipal authority or a
panchayat. Yet again, if such a certificate is
available, then no other material whatsoever
is to be taken into consideration, for
determining the age of the child concerned,
as the said certificate would conclusively
determine the age of the child. It is only in the
absence of any of the aforesaid, that Rule
12(3) postulates the determination of age of
the concerned child, on the basis of medical
opinion.”
28. In view of the aforesaid settled legal position, the provisions of
Section 94 of the Juvenile Justice (Care and Protection of
18
Children) Act, 2015 assume significance. The said provision
clearly stipulates the hierarchy of evidence for determination of
age, wherein the date of birth certificate from the school or the
matriculation certificate is to be accorded primacy; in the absence
thereof, the birth certificate issued by a municipal authority or
panchayat is to be considered; and only in the absence of both,
medical opinion is to be resorted to.
29. In the present case, the prosecution has relied upon documentary
as well as oral evidence to establish the age of the victim. The
Investigating Officer, PW-16 R.N. Gautam, has categorically
deposed that he had requisitioned the Anganwadi records
pertaining to the victim and seized the admission register
maintained at the Anganwadi centre. The said document has
been exhibited as Ex.P/15C. The seizure of the said register has
also been duly proved and corroborated by PW-06 Laxmi Telam,
the Anganwadi worker, who brought the original register before
the Court and deposed that the date of birth of the victim, as
recorded therein, is 06.03.2010.
30. A careful perusal of Ex.P/15C reveals that the name of the victim,
along with her parentage and date of birth, has been duly
recorded, and the entry indicates that she was admitted to the
Anganwadi centre on 01.12.2010, i.e., shortly after her birth. This
lends assurance to the authenticity of the entry, as the same
appears to have been made contemporaneously in the ordinary
19
course of official duty. It is also pertinent to note that the defence
has not seriously challenged the genuineness of the said
document, nor has any suggestion been put to the prosecution
witnesses disputing the recorded date of birth.
31. Although, in the cross-examination, PW-06 admitted that no
formal birth certificate was produced at the time of admission of
the victim and that the date of birth was recorded on the basis of
information furnished by the family members, such an admission,
by itself, does not render the document unreliable, particularly in
the absence of any contra evidence adduced by the defence. It is
well settled that entries made in official records maintained in due
course of duty carry a presumption of correctness unless rebutted
by cogent evidence.
32. Further, the medical evidence also lends support to the
prosecution case. The doctor who conducted the post-mortem
examination has opined that the age of the victim was
approximately 9 years at the time of her death. Though medical
opinion is not conclusive and is to be treated as an approximation,
it nonetheless corroborates the documentary evidence placed on
record.
33. Thus, upon conjoint consideration of the documentary evidence in
the form of Ex.P/15C, duly proved by PW-06 and PW-16, along
with the supporting medical evidence, this Court is satisfied that
the prosecution has successfully established that the date of birth
20
of the victim was 06.03.2010. Consequently, on the date of the
incident i.e. 13.01.2020, the victim was approximately 9 years and
10 months old, and in any case below 12 years of age.
34. In view of the aforesaid, it is held that the victim was a “child”
within the meaning of Section 2(1)(d) of the POCSO Act on the
date of the incident. Accordingly, Point No. (i) is answered in the
affirmative.
(ii) Whether the appellant is the author of the crime and has
committed the offences punishable under Sections 376(AB) and
302 of the IPC and Section 6 of the POCSO Act ?
35. Upon careful examination of the evidence available on record, it
emerges that the present case rests entirely on circumstantial
evidence, there being no direct eyewitness to the occurrence. In
such a situation, it becomes the bounden duty of the Court to
subject the entire material on record to a meticulous and cautious
scrutiny, as conviction in such cases cannot be based on
conjectures or surmises but must rest upon a firmly established
chain of circumstances. Each circumstance relied upon by the
prosecution must not only be proved beyond reasonable doubt,
but must also be consistent only with the hypothesis of the guilt of
the accused and inconsistent with any other plausible hypothesis.
36. The law governing cases based on circumstantial evidence has
been authoritatively laid down by the Hon’ble Supreme Court in
21
Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984
SC 1622, wherein the Court enunciated the well-known “five
golden principles” (panchsheel) which must be satisfied before a
conviction can be recorded. These principles require that: (i) the
circumstances from which the conclusion of guilt is to be drawn
must be fully established; (ii) the facts so established must be
consistent only with the hypothesis of the guilt of the accused; (iii)
the circumstances must be of a conclusive nature and tendency;
(iv) they must exclude every possible hypothesis except the one
to be proved; and (v) there must be a complete chain of evidence
which leaves no reasonable ground for a conclusion consistent
with the innocence of the accused.
37. It is equally well settled that suspicion, however strong, cannot
take the place of proof. The distance between “may be true” and
“must be true” must be completely bridged by the prosecution
through cogent, reliable and unimpeachable evidence. In a case
resting on circumstantial evidence, if any one link in the chain is
found to be missing or not satisfactorily proved, the benefit of
doubt must necessarily go to the accused. The Court must also
guard against the danger of allowing conjectures or moral
conviction to substitute legal proof.
38. At the same time, it is not the law that each circumstance must be
proved by direct evidence. Circumstantial evidence, if of a sterling
quality and forming a complete chain, can be as conclusive as
22
direct evidence. The cumulative effect of all the circumstances
must be taken into consideration, and the Court must examine
whether the circumstances, taken together, lead to the only
irresistible conclusion that the accused is the perpetrator of the
crime.
39. Therefore, in the present case, this Court is required to evaluate
each incriminating circumstance relied upon by the prosecution–
such as the “last seen” theory, recovery of incriminating articles,
medical and forensic evidence, extra-judicial confession, and
conduct of the accused and thereafter assess whether these
circumstances collectively form a complete and unbroken chain
pointing unequivocally towards the guilt of the appellant, thereby
excluding every hypothesis consistent with his innocence. Only
upon such satisfaction can a conviction be sustained in law.
40. In the present case, the first and foremost circumstance pertains
to the identification of the dead body, which assumes
considerable significance in a case resting entirely on
circumstantial evidence. The prosecution, in order to discharge its
burden, has led cogent and consistent evidence to establish
beyond doubt that the body recovered from the spot was that of
the victim. In this regard, PW-07, the maternal grandfather of the
victim, has categorically deposed that upon receiving information
about the recovery of a dead body, he immediately proceeded to
the place of occurrence and identified the body as that of his
23
granddaughter. His testimony is natural, trustworthy, and inspires
confidence, particularly as he is a close relative who would be in a
position to recognize the victim.
41. The testimony of PW-07 finds substantial corroboration from the
evidence of PW-10 Chinnaram Telam, who has clearly stated that
the grandfather of the victim had identified the dead body at the
spot itself. This independent corroboration lends further
assurance to the version put forth by PW-07 and rules out any
possibility of mistaken identity. Both these witnesses have
remained consistent in their statements, and nothing material has
been elicited during their cross-examination to cast any doubt
upon their credibility or to discredit their version.
42. Further strengthening the prosecution case is the testimony of
PW-19 Dr. B. Suri Babu, who was associated with the post-
mortem examination of the deceased. He has deposed that the
identification of the body was carried out by the relatives of the
victim on the basis of the clothes found on the body, namely the
school uniform and undergarment. This medical witness, being an
independent and expert witness, lends an added layer of reliability
to the identification process. His testimony clearly establishes that
the identification was not a casual or speculative exercise, but
was based on recognizable and specific features.
43. In addition to the oral evidence, the prosecution has also relied
upon documentary and material evidence in the form of
24
photographic proof. The photographs of the deceased, exhibited
as Ex.P/54, have been duly proved on record and corroborate the
oral testimony of the witnesses. The said exhibit provides visual
confirmation of the identity of the deceased and supports the
prosecution version that the body recovered was indeed that of
the victim. Notably, the defence has not raised any substantial
challenge to the authenticity or admissibility of this exhibit.
44. It is also pertinent to note that the defence has not seriously
disputed the identity of the dead body during the course of trial.
Though an attempt was made in cross-examination to suggest
that the body was in a decomposed condition, no suggestion was
put forth that the body was unidentifiable or that the identification
made by the relatives was erroneous. In the absence of any such
challenge, the version of the prosecution witnesses remains
unshaken and continues to hold the field.
45. Thus, upon a comprehensive appreciation of the oral as well as
documentary evidence, this Court finds that the prosecution has
successfully established the identity of the deceased beyond
reasonable doubt. The consistent and corroborative testimonies of
PW-07, PW-10, and PW-19, read with Exhibit P/54, form a
complete and reliable chain in this regard, leaving no scope for
any doubt that the dead body recovered was that of the victim.
46. The next circumstance sought to be established by the
prosecution is that the victim was last seen alive in the company
25
of the appellant, a circumstance which, if proved, could form a
vital link in the chain of circumstantial evidence. It is well settled
that the “last seen” theory can be relied upon only when the time
gap between the point when the accused and the deceased were
last seen together and the recovery of the dead body is so small
that the possibility of any person other than the accused being the
author of the crime becomes highly improbable. However, such a
circumstance must be proved with clarity, consistency, and
certainty, and cannot rest on vague or unreliable testimony.
47. In the present case, upon a careful and critical appreciation of the
evidence of the relevant prosecution witnesses, namely PW-01
Indra Telam, PW-03 Dhaniram Avlam, PW-09 Rambati Wacham,
PW-10 Chinnaram Telam, PW-11 Suresh Wacham, PW-12 Shailu
Kudiyam, PW-14 Munnaram Kudiyam, and PW-15 Sarita Avlam, it
becomes apparent that the prosecution has failed to discharge
this burden. A substantial number of these witnesses have not
supported the prosecution version in material particulars and have
been declared hostile. Their testimonies do not advance the case
of the prosecution insofar as the “last seen” circumstance is
concerned.
48. Even otherwise, the statements of these witnesses suffer from
material inconsistencies, omissions, and lack of specificity. None
of the witnesses have made a clear, cogent, and categorical
assertion that they had seen the victim in the exclusive company
26
of the appellant at or about the relevant time. The evidence, at
best, is vague and lacks the precision required to establish such a
crucial circumstance. There is no consistent version as to the
exact time, place, or manner in which the victim was allegedly last
seen with the appellant, nor is there any reliable indication of
proximity of time between such alleged sighting and the death of
the victim.
49. It is also significant that the testimonies of the hostile witnesses
have not been effectively corroborated by any independent or
circumstantial evidence. The prosecution has not been able to
extract any material admissions in the cross-examination of these
witnesses that would lend support to its case. In the absence of
such corroboration, the evidentiary value of their statements
stands considerably diminished.
50. Furthermore, the “last seen” theory, being a weak type of
evidence by itself, requires strong corroboration from other
incriminating circumstances to form a complete chain pointing
towards the guilt of the accused. In the present case, not only is
the “last seen” circumstance itself doubtful, but it also does not
find support from any other reliable evidence on record. This
creates a significant gap in the chain of circumstances sought to
be established by the prosecution.
51. In view of the aforesaid deficiencies, this Court is of the
considered opinion that the prosecution has failed to conclusively
27
establish that the victim was last seen in the company of the
appellant. The evidence on this aspect is neither reliable nor
sufficient to form a definite link in the chain of circumstances.
Consequently, this circumstance remains unproved and cannot be
relied upon to sustain the conviction of the appellant.
52. However, the prosecution has placed considerable reliance upon
the extra-judicial confession allegedly made by the appellant,
treating the same as a vital incriminating circumstance. In this
regard, PW-18 Sunil Kudiyam has deposed that the appellant, in
the presence of villagers, voluntarily confessed that he had
committed the offence in question. According to this witness, the
confession was not extracted under any coercion or inducement
but was made voluntarily by the appellant, thereby lending a
degree of authenticity to such statement.
53. The law relating to extra-judicial confession is fairly well settled. It
is trite that an extra-judicial confession is a weak piece of
evidence and ordinarily requires cautious scrutiny. However, it is
equally well established that if such a confession is found to be
voluntary, truthful, and made in a fit state of mind, and if it inspires
confidence of the Court, it can be relied upon and may even form
the basis of conviction without the need for further corroboration.
At the same time, the Court must be satisfied that the witness
before whom the confession is alleged to have been made is
trustworthy and that the surrounding circumstances do not cast
28
any doubt on the genuineness of the confession. In the present
case, the testimony of PW-18 Sunil Kudiyam assumes
significance. A careful reading of his deposition reveals that he
has consistently stated about the appellant having confessed his
guilt before the villagers. His testimony has remained unshaken
during the course of cross-examination, and nothing substantial
has been elicited to discredit his version or to suggest that he is
deposing falsely. There are no material contradictions or
omissions which would render his testimony unreliable or
unworthy of credence.
54. It is also noteworthy that there appears to be no apparent reason
or motive for PW-18 to falsely implicate the appellant. In the
absence of any animosity, enmity, or ulterior motive being
attributed to the said witness, his testimony gains further
credence. The prosecution has thus succeeded in establishing
that the extra-judicial confession was made voluntarily and was
not the result of any external pressure or influence. Moreover, the
fact that the confession was allegedly made in the presence of
villagers lends an additional layer of credibility, as it reduces the
possibility of fabrication or concoction. The natural conduct of the
witness, coupled with the absence of any inherent improbability in
his version, strengthens the prosecution case on this aspect.
55. Therefore, upon an overall appreciation of the evidence of PW-18
and the settled principles governing extra-judicial confession, this
29
Court is of the considered view that the said confession
constitutes a relevant and significant incriminating circumstance
against the appellant. The same, having been found to be
voluntary and trustworthy, can be safely relied upon and forms an
important link in the chain of circumstances sought to be
established by the prosecution.
56. The most crucial and determinative piece of evidence in the
present case is the scientific evidence in the form of DNA profiling,
which assumes great evidentiary value, particularly in cases
involving offences of sexual assault. The prosecution has
meticulously established the chain of custody and the manner in
which the biological and material exhibits were collected,
preserved, and forwarded for forensic examination. PW-16 R.N.
Gautam, the Investigating Officer, has categorically deposed that
during the course of investigation, he seized various incriminating
articles from the spot, including the undergarment of the victim,
blood-stained soil, plain soil, and cotton swabs containing
suspected biological material. The said seizure was effected in the
presence of witnesses and duly documented vide seizure memo
Ex.P/33. The testimony of PW-16 further reflects that due care
was taken to ensure that the seized articles were properly sealed
and labeled so as to avoid any possibility of tampering.
57. The medical evidence also lends substantial support to the
prosecution case. PW-17 Dr. Deepika Sinha, who conducted or
30
assisted in the post-mortem examination, has deposed that
biological samples of the victim, including vaginal swabs and
slides, were collected during the post-mortem and preserved in
accordance with established medical and forensic protocols. Her
testimony inspires confidence and demonstrates that the samples
were collected in a scientific manner, maintaining their integrity for
subsequent forensic analysis. Furthermore, the accused was also
subjected to medical examination, during which his blood sample
was collected for the purpose of DNA profiling, thereby completing
the necessary procedure for comparative analysis.
58. The prosecution has further established that all the seized articles
and biological samples were duly forwarded to the Forensic
Science Laboratory for examination. The reports received from
the said laboratory have been brought on record and exhibited as
Ex.P/51 and Ex.P/52. A careful perusal of these reports reveals
that the DNA profile generated from the vaginal swab and other
biological samples of the victim matches with the DNA profile of
the appellant. The matching of DNA profiles is a highly reliable
form of scientific evidence, which, when properly collected and
analyzed, provides near-conclusive proof of the involvement of an
individual in the commission of the offence.
59. It is well settled that DNA evidence, being based on scientific
principles, carries a high degree of accuracy and reliability, and in
the absence of any procedural lapses or credible challenge to its
31
authenticity, the same can be safely relied upon by the Court. In
the present case, the defence has not been able to demonstrate
any infirmity in the manner of collection, preservation, or analysis
of the samples. No suggestion of tampering, contamination, or
break in the chain of custody has been substantiated. The cross-
examination of PW-16 and PW-17 does not disclose any material
contradiction or discrepancy that would cast doubt on the
prosecution version in this regard.
60. The evidentiary value of the DNA report, as reflected in Ex.P/51
and Ex.P/52, is of sterling quality and stands unshaken. The
conclusive matching of the DNA profile of the appellant with the
biological material obtained from the victim establishes a direct
and unimpeachable link between the appellant and the offence of
sexual assault. This scientific evidence effectively rules out any
hypothesis of false implication or mistaken identity, thereby
strongly corroborating the prosecution case.
61. In view of the aforesaid, this Court is of the considered opinion
that the DNA profiling evidence constitutes a vital and clinching
circumstance in the chain of evidence. It not only establishes the
presence and involvement of the appellant but also lends strong
corroboration to other circumstances relied upon by the
prosecution. The same, therefore, forms a complete and
unbroken link pointing unerringly towards the guilt of the
appellant.
32
62. Apart from the aforesaid incriminating circumstances, the medical
evidence on record also lends substantial assurance to the
prosecution case and provides an independent corroborative
foundation to the allegations levelled against the appellant. The
post-mortem report, which has been duly exhibited as Ex.P/29,
assumes considerable significance in this regard. The said report,
prepared by the competent medical officer after a thorough
examination of the body of the victim, clearly records that the
victim had sustained injuries which are consistent with forcible
sexual assault. The nature, location, and extent of the injuries
noted in the genital region, as reflected in Ex.P/29, unmistakably
indicate that the victim was subjected to violence of a sexual
nature prior to her death.
63. The testimony of the medical witness, who proved the post-
mortem report, further reinforces the findings recorded therein.
The doctor has categorically opined that the injuries found on the
person of the victim could not have been self-inflicted or
accidental, and are indicative of the use of force. The presence of
such injuries, coupled with the recovery of biological samples from
the relevant parts of the body, strongly supports the prosecution
version that the victim was subjected to sexual assault. The
defence has not been able to elicit anything in the cross-
examination of the medical witness so as to discredit the medical
findings regarding the correctness of the opinion rendered.
33
64. Furthermore, the post-mortem report Ex.P/29 clearly opines that
the cause of death was asphyxia resulting from strangulation, and
the nature of death has been categorically described as
homicidal. The ligature marks and other corresponding internal
findings noted during the autopsy substantiate the conclusion that
external force was applied to the neck of the victim, leading to
cessation of respiration. The medical opinion in this regard is
definite and leaves no room for ambiguity or alternate
interpretation. The homicidal nature of death, thus established
through medical evidence, completely rules out any possibility of
accidental or natural death.
65. It is well settled that medical evidence, though generally
corroborative in nature, assumes great importance where it is
consistent with and supports the ocular and circumstantial
evidence on record. In the present case, the medical findings not
only corroborate but also fortify the prosecution case by
establishing two crucial aspects, namely, that the victim was
subjected to sexual assault and that her death was caused by
homicidal violence. The sequence of events, as emerging from
the medical evidence, is in complete harmony with the
prosecution narrative.
66. In view of the above, this Court finds that the medical evidence,
particularly the post-mortem report Ex.P/29, constitutes a vital link
in the chain of circumstances. It lends strong corroboration to the
34
scientific evidence in the form of DNA profiling as well as other
circumstances relied upon by the prosecution, thereby further
strengthening the conclusion that the victim was subjected to
forcible sexual assault and was thereafter done to death by
strangulation.
67. Thus, although the “last seen” circumstance has not been firmly
established and a number of prosecution witnesses have not
supported the case and were declared hostile, it does not ipso
facto demolish the prosecution case, particularly when other
reliable and cogent circumstances stand duly proved. It is a
settled principle of criminal jurisprudence that in cases resting on
circumstantial evidence, each circumstance must be
independently established and all such circumstances, when
cumulatively considered, must form a complete chain leading only
to the hypothesis of the guilt of the accused. In the present case,
despite the weakness of the “last seen” theory, the prosecution
has been able to establish other vital links in the chain of
circumstances.
68. Firstly, the identity of the victim stands conclusively established
through the consistent and reliable testimony of PW-07, PW-10,
and the medical evidence of PW-19, duly supported by the
photographic evidence exhibited as Ex.P/54. There is no material
contradiction or infirmity in their evidence so as to cast any doubt
on the identification of the deceased. Secondly, the recovery and
35
seizure of incriminating articles from the place of occurrence, as
deposed by PW-16 and recorded vide seizure memo Ex.P/33,
further strengthens the prosecution case. The proper seizure,
sealing, and forwarding of these articles for forensic examination
establishes the continuity and integrity of the evidentiary chain.
Thirdly, the extra-judicial confession made by the appellant, as
deposed by PW-18, constitutes an additional incriminating
circumstance. Though extra-judicial confession is considered a
weak piece of evidence, in the present case, the same appears to
be voluntary and has remained unshaken during cross-
examination. There is no plausible reason brought on record to
disbelieve the testimony of PW-18 or to infer any motive for false
implication, thereby lending credibility to this circumstance.
69. Most importantly, the scientific evidence in the form of DNA
profiling, as reflected in Ex.P/51 and Ex.P/52, conclusively
establishes that the DNA profile obtained from the biological
samples of the victim matches with that of the appellant. This
evidence is of unimpeachable character and provides a direct and
clinching link connecting the appellant with the crime. The
defence has failed to point out any discrepancy or procedural
lapse in the collection, preservation, or examination of the
samples, thereby rendering the DNA evidence wholly reliable.
70. When all these circumstances, namely (i) the established identity
of the victim, (ii) recovery and seizure of incriminating articles, (iii)
36
the extra-judicial confession of the appellant, and (iv) the
conclusive DNA evidence, are taken together and appreciated in
their cumulative effect, they form a coherent, consistent, and
unbroken chain of circumstances. The said chain is so complete
that it leaves no reasonable ground for a conclusion consistent
with the innocence of the appellant and points unerringly towards
his guilt. Accordingly, this Court is of the considered view that the
prosecution has succeeded in proving its case beyond reasonable
doubt, notwithstanding the failure to firmly establish the “last seen”
circumstance.
71. In view of the aforesaid discussion, this Court is of the considered
opinion that the prosecution has proved beyond reasonable doubt
that the appellant is the author of the crime. Accordingly, Point No.
(ii) is answered in the affirmative.
72. Considering the matter in its entirety, this Court is of the opinion
that when the entire evidence available on record is appreciated
in a cumulative and holistic manner, the following circumstances
stand firmly established against the appellant: (i) the homicidal
death of the victim, as proved by the medical evidence of PW-17
Dr. Deepika Sinha and the post-mortem report Ex.P/29, which
clearly opines that the cause of death was asphyxia due to
strangulation; (ii) the identity of the victim, duly established
through the consistent testimony of PW-07, PW-10 and PW-19,
corroborated by documentary evidence including Ex.P/54; (iii) the
37
recovery and seizure of incriminating articles from the spot,
including the undergarment of the victim and other biological
materials, as deposed by PW-16 R.N. Gautam vide seizure memo
Ex.P/33; (iv) the extra-judicial confession made by the appellant
before PW-18 Sunil Kudiyam, which has remained unshaken in
cross-examination and inspires confidence; and (v) the most
crucial circumstance of scientific evidence in the form of DNA
profiling, as reflected in Ex.P/51 and Ex.P/52, which conclusively
establishes that the DNA profile obtained from the vaginal swab of
the victim matches with that of the appellant.
73. The aforesaid circumstances, when taken together, form a
complete, cogent, and unbroken chain of evidence which points
unerringly towards the guilt of the appellant and rules out every
hypothesis consistent with his innocence. The scientific evidence,
particularly the DNA report, lends a decisive and clinching link
connecting the appellant with the commission of the offence of
sexual assault, while the medical evidence corroborates the
prosecution case regarding the homicidal death of the victim. The
extra-judicial confession further strengthens the prosecution case
and provides an additional incriminating circumstance against the
appellant.
74. Considering the matter in its entirety, this Court is of the opinion
that when the entire evidence available on record is appreciated
in a cumulative and holistic manner, the following circumstances
38
stand firmly established against the appellant: (i) the homicidal
death of the victim, as proved by the medical evidence of PW-17
Dr. Deepika Sinha and the post-mortem report Ex.P/29, which
clearly opines that the cause of death was asphyxia due to
strangulation; (ii) the identity of the victim, duly established
through the consistent testimony of PW-07, PW-10 and PW-19,
corroborated by documentary evidence including Ex.P/54; (iii) the
recovery and seizure of incriminating articles from the spot,
including the undergarment of the victim and other biological
materials, as deposed by PW-16 R.N. Gautam vide seizure memo
Ex.P/33; (iv) the extra-judicial confession made by the appellant
before PW-18 Sunil Kudiyam, which has remained unshaken in
cross-examination and inspires confidence; and (v) the most
crucial circumstance of scientific evidence in the form of DNA
profiling, as reflected in Ex.P/51 and Ex.P/52, which conclusively
establishes that the DNA profile obtained from the vaginal swab of
the victim matches with that of the appellant.
75. The aforesaid circumstances, when taken together, form a
complete, cogent, and unbroken chain of evidence which points
unerringly towards the guilt of the appellant and rules out every
hypothesis consistent with his innocence. The scientific evidence,
particularly the DNA report, lends a decisive and clinching link
connecting the appellant with the commission of the offence of
sexual assault, while the medical evidence corroborates the
39
prosecution case regarding the homicidal death of the victim. The
extra-judicial confession further strengthens the prosecution case
and provides an additional incriminating circumstance against the
appellant.
76. The learned Trial Court has meticulously examined both the oral
and documentary evidence brought on record and has recorded
well-reasoned and detailed findings while holding the appellant
guilty of the offences punishable under Sections 376(AB) and 302
of the IPC as well as Section 6 of the POCSO Act. Upon an
independent re-appreciation of the entire evidence, this Court
finds that the conclusions arrived at by the Trial Court are based
on proper appreciation of evidence and settled principles of law
governing cases based on circumstantial evidence. No material
contradiction, perversity, or illegality has been pointed out by the
defence which would warrant interference by this Court in
exercise of its appellate jurisdiction.
77. Consequently, this Court is of the considered view that the
prosecution has successfully established beyond reasonable
doubt in convicting the appellant for the offences punishable
under Sections 302, 376 (AB) of the IPC and Section 6 of the
POCSO Act and sentenced him as aforesaid in Section 302 of the
IPC and Section 6 of the POCSO Act. The chain of circumstances
is complete and incapable of any reasonable explanation other
than the guilt of the appellant.
40
78. It is stated at the Bar that the appellant is reported to be in
custody since 19.01.20220, he shall serve out the sentence as
ordered by the learned Trial Court.
79. Registry is directed to send a copy of this judgment to the
concerned Superintendent of Jail where the appellant is
undergoing his jail sentence to serve the same on the appellant
informing him that he is at liberty to assail the present judgment
passed by this Court by preferring an appeal before the Hon’ble
Supreme Court with the assistance of High Court Legal Services
Committee or the Supreme Court Legal Services Committee.
80. Let a certified copy of this judgment along with the original record
be transmitted to the trial court concerned forthwith for necessary
information and compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Anu
41
Head-Note
The heinous offence of sexual assault culminating in murder,
established through cogent medical evidence and reliable DNA profiling,
conclusively proves the guilt of the appellant beyond reasonable doubt,
fully satisfying the standard of proof; if such evidence inspires the
Court’s confidence, it can serve as the sole basis for conviction.