1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 1122 -1123 OF 2018

ABDUL NASSAR ..APPELLANT(S)

VERSUS

STATE OF KERALA & ANR. ..RESPONDENT(S)

J U D G M E N T

Mehta, J.

1. These appeals assail the judgment and order dated 28

th

February, 2018 passed by the Division Bench of the High Court of

Kerala at Ernakulam in Criminal Appeal No. 1452 of 2013 and

Death Sentence Reference No. 3 of 2013

1. The Death Sentence

Reference and the Criminal Appeal arose out of the judgment dated

1

Hereinafter, being referred to as D.S.R. No. 3 of 2013

2

31

st July 2013 passed by the Court of Sessions Judge, Manjeri

2 in

Sessions Case No. 487 of 2012.

2. By the aforesaid judgment, the learned trial Court found the

appellant (the sole accused) guilty of the offences punishable

under Sections 302 and Section 376 of the Indian Penal Code,

1860

3 and sentenced him as follows:

(i). Under Section 302 IPC: Death sentence (subject to the

confirmation by the High Court)

(ii). Under Section 376 IPC: Rigorous Imprisonment for 7 years

and a fine of Rs. 1,000/- (in default to undergo Rigorous

Imprisonment for two months). [This imprisonment was allowed to

be set off under Section 428 of the Code of Criminal Procedure,

1973

4]

3. Being aggrieved by his conviction and sentence awarded by

the learned trial Court, the accused preferred Criminal Appeal No.

1452 of 2013 before the High Court. Since the trial Court awarded

capital punishment to the accused appellant, the matter was

referred to the High Court under Section 366 CrPC for

confirmation of the death sentence vide D.S.R. No. 3 of 2013. Both

2

Hereinafter being referred to as ‘trial Court’

3

Hereinafter being referred to as ‘IPC’

4

Hereinafter being referred to as ‘CrPC’

3

D.S.R. No. 3 of 2013 and Criminal Appeal No. 1452 of 2013 were

decided by the High Court vide common impugned judgment dated

28th February 2018 whereby, the Criminal Appeal was dismissed,

and the Death Sentence Reference was allowed confirming the

death sentence awarded to the accused. Being aggrieved, the

accused appellant has filed the present appeals by way of special

leave.

4. This Court vide order dated 4

th September, 2018, stayed the

execution of death sentence awarded to the accused appellant.

5. During the pendency of these appeals, the appellant passed

away on 16

th January 2024. An application was submitted by the

legal heirs of the appellant before this Court under Section 394(2)

CrPC for the continuation of the present appeals to wash off the

stigma attached to the accused appellant and his family which was

allowed vide order dated 1

st February, 2024.

6. Brief facts relevant and essential for the disposal of these

appeals are as follows: -

6.1 The prosecution story in brief is that on 4th April, 2012, at

about 6:30 am, the child victim aged about 9 years was proceeding

from her house to the Madrassa situated at Ponnamkallu in

Amarambalam Village. On the way to the Madrassa, she went to

4

the house of the accused which was situated on the side of the

panchayat road at Ponnamkallu, in search of her friend who is the

daughter of the accused so as to go to the Madrassa together.

6.2 On seeing the child victim all alone, the accused who was also

alone in the house, committed rape upon her in a room in his

house at around 6:45 am, and after that, he strangled the child

victim with a shawl and smothered her with his hands which lead

to the death of the victim.

6.3 It is the case of the prosecution that the accused, with the

intention to destroy evidence, concealed the dead body of the

victim beneath a cot inside the bedroom in the said house.

Thereafter, the accused shifted the victim’s dead body to the

bathroom attached to the said house. He also attempted to dispose

of the dead body in the septic tank situated at the north-eastern

corner of the house as the stones from under the slab of the septic

tank were found removed.

6.4 When the victim could not be found anywhere despite frantic

efforts to trace her out, a written complaint

5 came to be submitted

by complainant-Salim (PW-1) at the Nilambur Police Station on 4th

April, 2012 at 7:00 pm on the basis of which an FIR No. 308 of

5

Exhibit P-1

5

2012

6 came to be registered at the Nilambur Police Station under

Section 57 of Kerala Police Act, 2011 and the investigation was

commenced.

6.5 The dead body of the girl was found at around 7:30 pm on

4th April, 2012, in the bathroom adjacent to the house of the

accused appellant and thereupon, the offence punishable under

Section 57 of the Kerala Police Act, 2011 was altered to Section

302 IPC vide Exhibit P-9. Further, on the next day, offences

punishable under Sections 376 and 201 IPC and Section 23 of the

Juvenile Justice (Care and Protection) Act, 2000

7 were also added

to FIR No. 308 of 2012

8 vide Exhibit P-20, and the investigation

continued. The accused appellant was arrested on 6

th April, 2012.

6.6 The Investigating Officer (PW-24) forwarded a report

9

regarding the addition of the name and address of the accused in

the aforesaid FIR. Material forensic evidence was collected from the

crime scene and was subjected to scientific examination .

Incriminating recoveries were effected in furtherance of the

disclosure statements made by the appellant. After the conclusion

of the investigation, a charge sheet came to be filed against the

6

Exhibit P-11

7

Hereinafter being referred to as ‘JJ Act’

8

Supra, Note 6

9

Exhibit P-21

6

accused for the offences punishable under Sections 376, 302, and

201 IPC and Section 23 of the JJ Act in the Court of the concerned

Jurisdictional Magistrate.

6.7 The case being exclusively Sessions triable was committed to

the Court of Sessions Judge, Manjeri (‘trial Court’) where charges

were framed against the accused for the above offences. The

accused pleaded not guilty and claimed trial.

7. The prosecution examined as many as 24 witnesses and

exhibited 25 documents and 17 material objects to prove its case.

For the sake of convenience, the details of the prosecution

witnesses, exhibits and material objects are given below: -

Prosecution Witnesses: -

PW-1 Saleem

PW-2 Nazarudheen

PW-3 Abdul Azeez

PW-4 Unnikrishnan

PW-5 Vijayachandran Kutty

PW-6 Harinarayanan

PW-7 Ibrahim Kutty

PW-8 Shamsudheen

PW-9 Suhara

PW-10 Ibrahim Darimi

PW-11 Ramakrishnan

PW-12 Unnikrishnan

PW-13 Musthafa

7

PW-14 Subramaniam

PW-15 Sunil Pulikkal

PW-16 Nisha

PW-17 Ratheesh

PW-18 Abraham

PW-19 Dr. Sonu

PW-20 Dr. Vinod Kumar

PW-21 Dr. R. Sreekumar

PW-22 Dr. P.A. Sheeju

PW-23 Pradeep Kumar

PW-24 A.P. Chandran

Exhibits:-

Ex. P-1 First Information Statement

Ex. P-2 Seizure Mahazar

Ex. P-3 Admission abstract and certificate of

the deceased, issued by the

Headmaster, Government LP School,

Kavalamukkatta

Ex. P-4 Property certificate issued by Village

Officer, Amarambalam

Ex. P-5 Scene Plan

Ex. P-6 Seizure Mahazar

Ex. P-7 Seizure Mahazar

Ex. P-8 Septic Tank Report issued by Asst.

Engineer, PWD Building Section,

Nilambur

Ex. P-9 Report incorporating the offence

under S. 302, Indian Penal Code,

1860 (IPC)

Ex. P-10 Seizure Mahazar

Ex. P-11 First Information Report

Ex. P-12 Potency Certificate

8

Ex. P-13 Examination report on semen stains,

blood, and hair

Ex. P-14 DNA Report

Ex. P-15 Post-Mortem report

Ex. P-16 Seizure Mahazar

Ex. P-17 Seizure Mahazar

Ex. P-18 Seizure Mahazar

Ex. P-19 Inquest Report

Ex. P-20 Report submitted in court

incorporating offences under S. 376

and 201 of the IPC, and the offence

under S. 23 of the Juvenile Justice

(Care and Protection) Act, 2015

Ex. P-21 Report submitted in court adding

name of the accused to the FIR.

Ex. P-22 List of property sent to Magistrate,

filed by PW24.

Ex. P-23 Extract of confessional statement of

the accused.

Ex. P-24 Chemical analysis certificate.

Ex. P-25 Copy of request for collection of nail

clippings, hair, and blood of the

accused.

Material Objects:-

MO1 Chapels

MO2 Chapels

MO3 Writing pad

MO4 Pen

MO5 Plastic cover

MO6 Plastic carry bag

MO7 Midi skirt

MO8 Petticoat

MO9 Midi top

9

MO10 Piece of shawl

MO11 Underwear

MO12 Piece of shawl

MO13 Piece of shawl

MO14 Dothi

MO15 Full sleeves shirt

MO16 Passport of the accused.

MO17 Election Identity Card of the accused

8. The accused upon being questioned under Section 313 CrPC

denied the prosecution allegations but chose not to lead any

evidence in defence. The trial Court proceeded to convict and

sentence the accused in the above terms

10 vide judgment dated

31

st July 2013.

9. Being aggrieved by the conviction and sentence awarded by

the trial Court, the accused appellant preferred Criminal Appeal

No. 1452 of 2013 under Section 374(2) CrPC before the High Court

of Kerala at Ernakulam. Since, the trial Court awarded death

sentence to the accused for the offence punishable under Section

302 IPC, the matter was referred to the High Court for confirmation

of the death sentence under Section 366 CrPC vide D.S.R. No. 3 of

2013.

10

Refer, Para 2

10

10. Criminal Appeal No. 1452 of 2013 and D.S.R. No. 3 of 2013

were decided vide common judgment dated 28th February 2018 ,

whereby the Division Bench of the High Court dismissed the

Criminal Appeal and allowed the Death Sentence Reference

confirming the death sentence awarded to the accused appellant.

The said judgment is assailed in the present appeals.

Submissions on behalf of the appellant:

11. Shri Trideep Pais, learned senior counsel representing the

accused appellant advanced the following pertinent submissions

to assail the impugned judgment: -

11.1 That the prosecution has not been able to establish that the

body of the victim girl was dumped in the bathroom by the

accused. The bathroom where the body was found was located

outside the house of the accused and was open and easily

accessible to all and sundry. The accused was not in the house at

the time of the incident and thus, the possibility of someone else

having committed the crime cannot be ruled out.

11.2 That the body of the deceased was discovered at around

7:30 pm and the police officials arrived at the scene for the first

time at around 9:00 pm i.e. after a delay of 1.5 hours. Admittedly,

local people arrived at the crime scene during this time and thus,

11

the possibility of the public tampering with the body of the

deceased and disturbing and contaminating the crime scene

cannot be ruled out which brings the integrity of samples collected

during the investigation under a shadow of doubt.

11.3 That the scene of occurrence and body of the deceased

remained unsealed and unguarded for around 14 hours until 9:00

am of 5

th April, 2012, i.e., the time when inquest was prepared.

This renders every subsequent seizure of samples or evidence

collected from the house of the accused or the body of the deceased

unreliable with a strong possibility of degradation and

contamination of body and so also the tampering of evidence.

11.4 That as per the statement of AP Chandran, Investigating

Officer (PW-24), the underwear was found on the body of the

deceased while as per the Inquest Report

11, the underwear (MO 11)

was found in the kitchen. Further, none of the witnesses to the

inquest report were examined and also the contents of the inquest

report have not been proved by the Investigating Officer (PW-24) in

his deposition.

11.5 That the blood stains were only found in the north-west room

which is admittedly not the room where the crime was committed

11

Exhibit P-19

12

and there is no tangible evidence on record to explain how the dead

body was taken unnoticed from the crime scene to the bathroom

situated outside the house of the accused.

11.6 That no seizure memo was prepared for the collection of the

clothes of the deceased i.e. midi skirt, petticoat, top and underwear

seized by the Investigating Officer (PW-24) and even the inquest

report

12 does not mention that these items were sealed.

11.7 That the chain of custody of all articles seized by the police

has not been established and there has been a lapse in sending

the material articles for forensic examination. Also, the manner of

storage of the biological samples has been improper which is

contrary to the mandate laid down by this Court in Rahul v. State

(NCT of Delhi)

13

and Prakash Nishad @ Kewat Zinak Nishad v.

State of Maharashtra

14

.

11.8 That the findings of the DNA Report

15 dated 11

th January,

2024 and FSL Report

16 of seminal stains, blood and hair dated 4

th

January, 2024 cannot be relied upon due to the absence of

corroborative evidence of seizure and reasons behind the findings

of the experts. Thus, these reports do not meet the standards of

12

Exhibit P-19

13

(2023) 1 SCC 83

14

2023 SCC OnLine SC 666

15

Exhibit P-14

16

Exhibit P-13

13

expert evidence enumerated under Section 45 of the Indian

Evidence Act, 1872.

11.9 That it is a settled position of law that the accused must be

given an opportunity to explain all evidence against him during the

recording of his statement under Section 313 CrPC which has not

been complied with in the instant case inasmuch as the findings

of DNA examination and serological examination were not put to

the accused and thus, the same cannot be relied upon in support

of the prosecution case.

11.10 That the disclosure statement

17 made by the accused cannot

be relied upon as the exclusive knowledge or access of the accused

to the terrace from which the alleged recovery was made is not

shown by the prosecution and the recovered articles were not

identified in TIP

18 or adequately link with the deceased.

11.11 That the material witness, Amina Thana who had last seen

the deceased going towards the Madrassa, and other witnesses

namely, Muhammad Shan, Kunhiappa, and Keshavan who were

part of the search party were not examined by the prosecution.

11.12 That the testimony of the prosecution witnesses,

Nazarudheen (PW-2), Shamsudheen (PW-8) and Unnikrishnan

17

Exhibit P-23

18

Test Identification Parade

14

(PW-12) cannot be relied upon. Nazarudheen (PW-2) stated that

he went to the house of the accused on four occasions, and it was

during his fourth visit, he found the dead body of the victim in the

bathroom. It was contended that PW-2 had even searched the

bathroom on his third visit but did not find anything and thus

apparently, the recovery of the dead body is a planted one.

11.13 That there is no eyewitness to the alleged incident and the

case of the prosecution hinges entirely on circumstantial evidence.

The prosecution has failed to prove the complete chain of

incriminating circumstances pointing towards the guilt of the

accused. In this regard, learned senior counsel relied upon the

judgments of this Court in Hanumant v. State of Madhya

Pradesh

19; Sharad Bird hichand Sarda v . State of

Maharashtra

20 to submit that it is settled law that in a case of

circumstantial evidence, the chain of circumstances must be so

complete that it is consistent only with the guilt of accused and

every other possible hypothesis is excluded.

11.14 That the instant case does not fall within the purview of the

rarest of rare cases. The High Court affirmed the death sentence

awarded to the accused without adverting to the relevant

19

(1952) 2 SCC 71

20

(1984) 4 SCC 116

15

mitigating and aggravating circumstances pertaining to the

accused.

He thus implored the Court to accept the appeals and set

aside the impugned judgments.

Submissions on behalf of Respondent-State: -

12. Per contra, Shri R. Basant, learned senior counsel

representing the State, vehemently and fervently opposed the

submissions advanced by the learned senior counsel for the

accused appellant and submitted that every reasonable hypothesis

points towards the guilt of the accused. He urged that two Courts,

i.e., the trial Court as well as the High Court, have recorded

concurrent findings of facts, convicting the accused and hence,

this Court in the exercise of its jurisdiction under Article 136 of

the Constitution of India should be slow to interfere with such

concurrent findings of facts. He advanced the following

submissions while supporting the impugned judgment and

imploring the Court to dismiss the appeals: -

12.1 That the blood stains were found inside the house of the

accused, beneath the cot and on the cot, and the DNA Report

21

establishing that the blood stains found were that of the deceased.

21

Exhibit P-14

16

12.2 That the seminal stains on the vaginal swab and smear of the

deceased collected by Forensic Surgeon (PW22) also matched with

the DNA of the accused as per the DNA Report (Exhibit P-14).

12.3 That the Inquest Report (Exhibit P-19) is an admissible piece

of evidence since the same was prepared by the Investigation

Officer (PW-24) while discharging his official duties under Section

174 CrPC. In this regard, the learned counsel placed reliance on

Rameshwar Dayal and Others v. State of U.P .

22 and George

and Others v. State of Kerala and Another

23

12.4 That no explanation has been given by the accused for

recovery of the writing pad (MO3), pen (MO4), plastic cover (MO5),

plastic carry bag (MO6) and the underwear of the victim (MO11)

from the roof of his own house.

12.5 That the learned counsel for the appellant contended that

Nazarudheen (PW2) went to the house of the accused four times

on the date of the incident i.e. 4

th April, 2012. The body of the

deceased was found by him on the fourth visit, and PW2 had even

searched the bathroom on his third visit but did not find anything.

However, he submitted that it is clear from the evidence of

Nazarudheen (PW2) that he had a grave suspicion against the

22

(1978) 2 SCC 518

23

(1998) 4 SCC 605

17

accused, and he informed this fact to Shamsudheen (PW8) and

Unnikrishnan (PW12). The accused became apprehensive after the

third visit of Nazarudheen (PW2) and thus, he told PW2 that he did

not have the key to his house. In the meantime, he shifted the body

from the bedroom to the bathroom in an attempt to hide the dead

body in the septic tank.

12.6 That the instant case falls within the rarest of rare cases as

the accused was in a relationship of trust, belief, and confidence

with the deceased, being the father of a friend of the deceased and

there are no extenuating circumstances which can be sai d to

mitigate the enormity of the crime.

On these submissions, Mr. Basant implored the Court to

dismiss the appeals and affirm the impugned judgement.

Discussion and Conclusion: -

13. We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

judgments of the trial Court and High Court as well as the evidence

available on record.

14. Indisputably, the prosecution case rests on circumstantial

evidence. The law with regard to a case based purely on

circumstantial evidence has very well been crystalized in the

18

judgment of this Court in the case of Sharad Birdhichand

Sarda(supra), wherein this Court held thus:

“152. Before discussing the cases relied upon by the High Court we

would like to cite a few decisions on the nature, character and

essential proof required in a criminal case which rests on

circumstantial evidence alone. The most fundamental and basic

decision of this Court is Hanumant v. State of Madhya Pradesh

[(1952) 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091: 1953 Cri LJ

129]. This case has been uniformly followed and applied by this

Court in a large number of later decisions up to date, for instance,

the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3

SCC 198: 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra

[(1972) 4 SCC 625: AIR 1972 SC 656]. It may be useful to extract

what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC

71: AIR 1952 SC 343: 1952 SCR 1091: 1953 Cri LJ 129]:

“It is well to remember that in cases where the

evidence is of a circumstantial nature, the

circumstances from which the conclusion of guilt is

to be drawn should in the first instance be fully

established, and all the facts so established should be

consistent only with the hypothesis of the guilt of the

accused. Again, the circumstances should be of a

conclusive nature and tendency, and they should be

such as to exclude every hypothesis but the one

proposed to be proved. In other words, there must be

a chain of evidence so far complete as not to leave any

reasonable ground for a conclusion consistent with

the innocence of the accused and it must be such as

to show that within all human probability the act

must have been done by the accused.”

153. A close analysis of this decision would show that the following

conditions must be fulfilled before a case against an accused can be

said to be fully established:

(1) The circumstances from which the conclusion of guilt is to be

drawn should be fully established.

It may be noted here that this Court indicated that the

circumstances concerned “must or should” and not “may be”

established. There is not only a grammatical but a legal distinction

between “may be proved” and “must be or should be proved” as was

held by this Court in Shivaji Sahabrao Bobade v. State of

Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ

19

1783] where the observations were made: [SCC para 19, p. 807: SCC

(Cri) p. 1047]

“Certainly, it is a primary principle that the accused must

be and not merely may be guilty before a court can convict

and the mental distance between ‘may be’ and ‘must be’ is

long and divides vague conjectures from sure

conclusions.”

(2) the facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they should not

be explainable on any other hypothesis except that the accused is

guilty,

(3) the circumstances should be of a conclusive nature and

tendency,

(4) they should exclude every possible hypothesis except the one to

be proved, and

(5) there must be a chain of evidence so complete as not to leave any

reasonable ground for the conclusion consistent with the innocence

of the accused and must show that in all human probability the act

must have been done by the accused.

154. These five golden principles, if we may say so, constitute the

panchsheel of the proof of a case based on circumstantial evidence.”

15. In the light of these guiding principles, we will have to

examine the facts of the present case.

16. Before delving into the discussion with respect to the

submission regarding the breach in the link evidence on which the

entire focus was laid by the learned senior counsel for the

appellant, we would like to discuss the other important pieces of

evidence on which the trial Court as well as the High Court relied

upon so as to record and uphold the conviction recorded against

the accused appellant.

20

17. The High Court primarily relied upon the deposition of

maternal uncle of the deceased child namely, Saleem(PW -1),

another maternal uncle of the deceased child namely,

Nazarudheen (PW-2), mother of the deceased, Suhara (PW-9), and

the Madrassa teacher, Ibrahim Darimi (PW-10). The summary of

the evidence of these witnesses can be extracted from paragraphs

8 to 11 of the impugned judgment rendered by the High Court

which is reproduced hereinbelow for the sake of convenience:-

“8. PW1 is the uncle (mother's brother) of the deceased. He gave

Fl statement regarding the fact that the girl was missing from

their house. Ext.P1 is the FI statement given at 7.00 p.m. on

4/4/2012. In the statement, he has stated that she had gone

to the madrassa at about 7 am on 4/4/2012. Since she did not

come back by about 10 am, he had gone and enquired at the

Madrassa, and he was told that she had not reached there.

When enquired with the people in the locality, they told that she

was seen within 100 meters of the madrassa. They went and

checked up in the locality and the house of relatives where she

would normally go. Since no information was received, a

complaint was filed.

9. PW9 is the mother of the deceased child., She deposed that

the victim was studying in the 3rd standard in Government L.P.

School at Kavalamukkatta in 2012. The birth certificate had

been produced by the Headmaster of the School PW5 and

marked as Ext.P3. In Ext.P3, her date of birth was shown as

25/8/2002.

10. PW10, the teacher in the madrassa deposed that she was

studying in the 3rd standard and normally she comes at 7.00

a.m. and the class will be over by 9.00 a.m. On 4/4/2012, there

was an examination, but she did not come.

11. PW2 is another uncle (mother's brother), of the deceased.

He deposed that while conducting search for the minor girl, he

got information from a lady by name Amina that she saw her

granddaughter and the victim going together in the direction of

madrassa. When he enquired in the madrassa, he was informed

21

that she did not reach there. The house of the accused is very

near to the madrassa. PW2 conducted a search near the house

of the accused also. The house of the accused was found locked.

During a second search, PW2 again reached near the house of

the accused by around 4.00 p.m. Even at that time, the house

was found locked. By about 6.45 p.m., he along with certain

other persons reached near the house of the accused. The

accused was found sitting on the veranda. When they asked the

accused about the girl, he told them that he also went in search

for her, and he reached the house only at that time PW2 also

searched the shed and the bathroom of the said house. He

asked the accused to open the house in order to conduct a

search. Accused told him that the key was with his wife and

that he would go and bring it. PW2 therefore went to search in

the pond which was situated near the house of the accused. He

again went near the madrassa where he met a few other persons

including PW8. However, PW2 had some suspicion re garding

the accused which he communicated to them. They therefore

came to the house of the accused. They found the house of the

accused locked. PW12 had a torch with him. He went to the

bathroom and found a heap of clothes. He called others. PW8

entered the bathroom and removed the clothes and found the

dead body of the girl lying beneath the clothes. They shouted

for the people in the locality. Many people gathered and the

police also had come, PW8 and PW12 who were also along with

PW2 had supported the above version.”

18. Neither there is any doubt, nor any argument was raised by

the learned counsel for the appellant that any of these witnesses

bore an animus against the accused so as to influence them for

deposing falsely against the accused. All these witnesses are either

related to the victim or were residents of the neighbourhood who

could not have entertained any motive for falsely implicating the

accused and that too, for such a heinous offence. The evidence of

these witnesses portrays the following sequence of the events: -

22

18.1 The child victim had proceeded from the house for going to

the Madrassa at 6:30 am on 4

th April, 2012. She did not reach the

Madrasa on which a search was started.

18.2 Since the last location of the child victim was found near the

house of the accused, Nazarudheen (PW-2) [the maternal uncle of

the deceased] conducted the search near his house which was

found locked.

18.3 The search proceedings continued and Nazarudheen (PW-2)

again reached near the house of the accused at around 4:00 pm.

Even at that time, the house of the accused was locked.

18.4 At around 6:45 pm, Nazarudheen (PW-2) accompanied with

certain other persons reached near the house of the accused and

the accused was found sitting in the veranda of the house.

18.5 On inquiry being made from the accused about the girl, he

replied that he had also gone for search of the child and had

reached back to his house only at that time.

18.6 Nazarudheen (PW-2) also searched the shed and the

bathroom of the house of the accused. He asked the accused to

open the house in order to conduct a search. The accused told

him that the key was with his wife, and he would go to fetch it.

23

18.7 Nazarudheen (PW-2) went to search in the pond which was

situated near the house of the accused. He again went near the

Madrassa where he met few other members of the search party

including Shamsudheen (PW-8).

18.8 The conduct of the accused raised suspicion upon which

Nazarudheen (PW-2) along with the other members of the search

party [Shamsudheen(PW-8) and Unnikrishnan(PW-12)] came back

to the house of the accused which was still locked.

18.9 Unnikrishnan (PW-12) had a torch with him. He lighted the

torch and went to the bathroom and in illumination thereof, he

found a heap of clothes. He called the other members of the search

party. Shamsudheen (PW-8) entered the bathroom and removed

the clothes and found the dead body of the child victim lying

beneath the clothes.

18.10 A hue and cry was raised, and many people gathered there.

The parents of the deceased child were also called.

18.11 The people of the locality caught hold of the accused and he

was taken to the hospital where certain injuries were noted on his

body. Shamsudheen (PW-8) and Unnikrishnan (PW-12) also fully

supported the version of Nazarudheen (PW-2) in their depositions.

24

18.12 The dead body of the deceased child was subjected to

postmortem at the hands of Dr. P.A. Sheeju (PW-22) who took note

of a total of 37 ante-mortem injuries in the postmortem report

24.

The doctor opined that the victim died due to manual compressive

and ligature constrictive strangulation. The injuries on the body

and external genitalia were suggestive of forcible vaginal

penetrative sex.

19. A holistic view of the evidence of Nazarudheen (PW-2),

Shamsudheen (PW-8) and Unnikrishnan (PW-12) would show that

their initial attempts to search the house of the accused did not

succeed because the same was found to be locked. At that time,

these witnesses had also checked inside the bathroom which is

just adjacent to the house of the accused. The accused has not

denied that this bathroom was a part and parcel of his property.

20. When the initial search of the bathroom was taken, nothing

was seen therein. Immediately thereafter, the accused posed to

the search party that the key to the lock of his house was with his

wife. There was an intervening gap in these two events. After some

interregnum, when the witnesses Nazarudheen (PW-2),

Shamsudheen (PW-8) and Unnikrishnan (PW-12) went into the

24

Exhibit P-15

25

bathroom of the accused, they found the dead body of the child

lying there. It shows that when the witnesses kept on persevering

to search the house of the accused, he tried to parry their attempts.

Taking advantage of the gap wherein the witnesses had gone to the

Madrassa, he shifted the dead body from inside of the house to the

bathroom and that is why the dead body was found lying in the

bathroom on second search being made.

21. The Investigating Officer (PW-24) apprehended the accused

and arrested him. At the time of arrest, the accused was found

having injuries which appear to have been caused by the local

people before his arrest.

22. The Investigating Officer (PW-24) interrogated the accused

and recorded his disclosure statement

25 and acting in furtherance

thereof, the school bag containing the writing pad and footwear

etc. of the victim were recovered. These articles were identified by

Suhara(PW-9), the mother of deceased.

23. The summary of the scientific evidence and the carrying of

the samples by the police officials for forensic examination are

contained in paragraph 13 of the impugned judgment rendered by

25

Exhibit P-23

26

the High Court and the same is being reproduced hereinbelow for

the sake of ready reference:-

“13. The investigating officer had also taken steps for

conducting scientific evidence by sending about 16 sealed

packets to the Forensic Science Laboratory, PW20 had

conducted the examination of seminal stain on item Nos.1 to 5,

12 and 13(a) and the same was detected in all those items. The

items were a midi skirt M07, a dhoti MO14, a towel and vaginal

swab. Blood was also detected on the midi skirt, petticoat,

dhoti, a full sleeve shirt, cotton gauze etc. The blood was found

to be of human origin. Further, nail cuttings were also

examined by PW20. But no for eign tissues were detected.

Various other items were sent by PW20 for DNA analysis. Pw21

has conducted a DNA analysis. DNA typing showed that the

seminal stains in item Nos. l and 13(a) belonged to the accused.

Item No.1 is the midi skirt and item No. 13(a) is the vaginal

swab. Item No.16 was the blood sample taken from the accused.

It is further reported that the DNA typing showed that the blood

stains in items Nos, 5 and 6 and the cells on the nail cuttings

in item Nos.17(a) and 17(b) belonged to the accused. Item No.5

is the reddish brown coloured torn single dhoti and item No.6

is the green coloured torn and soiled full sleeve shirt with self-

lines. Further DNA typing shows that item Nos.1, 7, 8 and 12

and vaginal cells in item No:13(a) belonged to the deceased.

Item No.7 is the blood stain collected in cotton gauze from the

floor beneath the cot and item No.8 is the blood stain collected

in the cotton gauze from the cot. Ext.P14 is the report prepared

by PW21.”

24. Though learned counsel for the appellant has vehemently and

fervently criticised the link evidence, but after going through the

testimony of the Investigating Officer (PW-24), DNA expert (PW-4)

Constable Nisha (PW-16) and on an overall appreciation of the

evidence of the witnesses mentioned above, we find that the

prosecution has given convincing link evidence to establish the

safe keeping of the samples right from the time of the seizure till

27

receipt at the forensic laboratory. The accused himself has not

claimed that after his arrest, the Investigating Officer (PW-24) tried

to collect his sample of the semen. Thus, there was no possibility

that the semen containing the DNA of the accused could have been

planted on the body of the deceased.

25. The following circumstances stand firmly established from a

threadbare analysis of the evidence available on record, pointing

towards the guilt of the accused appellant: -

(i) The child victim was a friend of the daughter of the accused,

and they used to go to Madrassa together.

(ii) On the date of incident, the child victim was seen with the

daughter of the accused. However, she never reached Madrassa.

(iii) When the child victim did not return home, an extensive

search was conducted and since, the child victim was last seen

with the daughter of the accused, the needle of suspicion pointed

towards the house of the accused, more particularly because his

house was situated close by the Madrassa.

(iv) Nazarudheen (PW-2) tried to repeatedly search the house of

the accused along with neighbours and in the efforts to trace out

the child victim, the witness found the house of the accused locked

in his first and second attempts.

28

(v) During the third search attempt, the witness(PW-2) found the

accused sitting in verandah of his house. Upon being asked for the

permission to search his house, the accused stated that the keys

of the house were with his wife, and he would bring it himself.

(vi) The witness Nazarudheen (PW-2) during the third attempt,

searched the slopping shed and the bathroom adjacent to the

house but to no avail whereafter, he went to search the pond near

the house of the accused.

(vii) After searching the pond, the witness(PW-2) fixed the battery

of the torch which he had called from his father, since it was dark

and reached near the Madrassa.

(viii) In the fourth attempt, witnesses namely, Nazarudheen

(PW-2), Shamsudheen (PW-8) and Unnikrishnan (PW-12) got

suspicious of the accused’s conduct and resumed the search of the

house of the accused and even this time, the house of the accused

was locked, and the accused was not present there. PW -12

inspected the bathroom by lighting his torch and found a heap of

clothes, which was removed by PW-8 and the dead body of the

child victim was discovered concealed thereunder.

(viii) Two stones of the septic tank inside the house of the accused

were also found moved.

29

(ix) Blood-stained pink colour midiskirt (MO-7), petticoat (MO-8)

and black miditop (MO-9) worn by the deceased child victim were

identified by her mother(PW-9), recovered by the police officials

from the house of the accused and were seized. An

underwear(MO11) of the deceased was also found in the kitchen of

the house of the accused.

(x) Blood stains were found on the cot and floor beneath it.

(xi) As per the postmortem report

26, a total of 37 ante mortem

injuries were found on the child victim’s body along with injuries

on the genitalia, suggestive of forcible penetrative sexual assault.

The cause of death was opined to be manual compressive and

ligature constrictive strangulation.

(xii) As per the FSL report

27, the midiskirt worn by child victim,

the dhoti of the accused and cotton gauze collected from the scene

of crime contained human spermatozoa and semen. The hair

collected from the crime scene matched with the hair of the

deceased child victim.

(xiii) The DNA report

28 clearly proved that the DNA profile of the

semen stains found on the midiskirt (MO-7) matched with that of

26

Exhibit P-15

27

Exhibit P-13

28

Exhibit P-14

30

the accused. Further, the blood stains found on the cot and

beneath it were that of the deceased child victim.

(xiv) The slippers, hard-board writing pad, plastic cover of the

writing pad, grey coloured pen and light rose small plastic carry

bag belonging to the deceased child victim, as identified by her

mother (PW-9), were recovered in furtherance of the voluntary

disclosure statement

29 of the accused.

26. Based on the analysis of the evidence on the record, we are

of the view that the chain of incriminating circumstances required

to bring home the guilt of the accused is complete in all aspects.

In the present case, we affirm that the prosecution has been able

to prove the guilt of the accused appellant by fulfilling the five

golden principles (Panchsheel) laid down by this Court in the case

of Sharad Bird hichand Sarda (supra) and that the

circumstances present before us, taken together establish

conclusively only one hypothesis that being the guilt of the accused

appellant.

27. In the wake of the discussion made hereinabove, there is no

doubt in the mind of the Court that the prosecution has proved by

leading clinching and convincing circumstantial evidence that the

29

Exhibit P-23

31

accused had committed forcible and violent sexual assault on the

child victim and, thereafter, strangled and killed her.

28. While we concur with the ultimate conclusions reached by

the learned trial Court and the High Court, we cannot overlook the

deficiencies in the methodology adopted by both the Courts in the

appraisal and analysis of the circumstantial evidence. The manner

in which the evidence has been scrutinized lacks the depth and

rigor expected, raising concerns about the adequacy of the

evaluative process undertaken to arrive at the said decisions.

29. The Courts have undertaken an examination of the

testimonies of the witnesses but has omitted to delineate the

inferences derivable therefrom. Moreover, they failed to expound

upon how the prosecution has succeeded in constructing an

unbroken chain of circumstances that irrefutably establishes the

culpability of the accused to the exclusion of any other hypothesis.

30. We deem it essential to enunciate the principles that courts

must adhere to while appreciating and evaluating evidence in

cases based on circumstantial evidence, as follows:

(i). The testimony of each prosecution and defence witness must

be meticulously discussed and analysed. Each witness's evidence

should be assessed in its entirety to ensure no material aspect is

32

overlooked.

(ii). Circumstantial evidence is evidence that relies on an

inference to connect it to a conclusion of fact. Thus, the reasonable

inferences that can be drawn from the testimony of each witness

must be explicitly delineated.

(iii). Each of the links of incriminating circumstantial evidence

should be meticulously examined so as to find out if each one of

the circumstances is proved individually and whether collectively

taken, they forge an unbroken chain consistent only with the

hypothesis of the guilt of the accused and totally inconsistent with

his innocence.

(iv). The judgment must comprehensively elucidate the rationale

for accepting or rejecting specific pieces of evidence, demonstrating

how the conclusion was logically derived from the evidence. It

should explicitly articulate how each piece of evidence contributes

to the overall narrative of guilt.

(v). The judgment must reflect that the finding of guilt, if any, has

been reached after a proper and careful evaluation of

circumstances in order to determine whether they are compatible

with any other reasonable hypothesis.

33

31. Consequently, the appeals lack merit and are hereby

dismissed. However, the question of execution of death sentence

awarded to the appellant has been rendered otiose, considering the

fact that he has passed away. Thus, there remains no question of

dealing with the aspect of capital punishment awarded to the

appellant(since deceased).

32. Pending application(s), if any, shall stand disposed of.

………………….……….J.

(B.R. GAVAI)

………………….…… …..J.

(K.V. VISWANATHAN)

………………………….J.

(SANDEEP MEHTA)

New Delhi;

January 07, 2025.