MOHD. FIROZ v. STATE OF MADHYA PRADESH

MOHD. FIROZ v. STATE OF MADHYA PRADESH 171 upon the facts which are proved to be within his special knowledge in view of Section 106 of the Evidence Act, such failure on the part of the accused may also provide an additional link in the chain of circumstances required to be proved against him. Of course, Section 106 of the Evidence Act does not shift the burden of the prosecution on the accused, nor requires the accused to furnish an explanation with regard to the facts which are especially within his knowledge, nonetheless furnishing or non-furnishing of the explanation by the accused would be a very crucial fact, when the theory of “last seen together” as propounded by the prosecution is proved against him, to know as to how and when the accused parted the company of the victim. [Para 26][191-E- H; 192-A]

1.4 In the instant case, though it was duly proved that the appellant-accused had taken the victim with him from the shop of fruit vendor, neither any explanation was offered by the appellant in his further statement under Section 313 of Cr.P.C. nor any concrete defence was taken during the course of the cross- examination of the witnesses. It is pertinent to note that after the alleged incident, he had run away to his native place at Bihar. Admittedly he was arrested therefrom and was brought back after obtaining the transit remand from the concerned court at Bhagalpur. The said conduct of the accused in absconding away also was a circumstance duly proved by the prosecution against him. [Para 30][194-F-H]

1.5 So far as the proximity of time is concerned, coupled with the other evidence, the prosecution had proved the close proximity of time when the victim was last seen with the appellant and when the victim was found unconscious and in injured condition, which ultimately resulted into her death. [Paras 31 & 32][195-E-F]

1.6 The next issue with regard to the trial having not been conducted in fair manner, there is nothing on record to suggest that the due procedure was not followed or that the appellant- accused had suffered on account of deprivation of the legal aid or legal assistance to him. The trial court did provide legal assistance to both the accused by appointing a lawyer at the expense of the A B C D E F G H 172 SUPREME COURT REPORTS [2022] 19 S.C.R. State, who had thoroughly cross-examined all the witnesses examined by the prosecution, and had also examined two witnesses on behalf of accused R. Apart from the fact that no such contention was raised during the course of trial or even before the High Court in the two separate appeals filed by the accused represented by two separate lawyers, no such contention has been raised by the appellant-accused even in the memorandum of the present appeal. The oral submission made by the learned Senior Advocate appearing on behalf of the accused at the fag end of his arguments that there was no fair trial conducted, without substantiating the said submission, cannot be entertained. Even otherwise, it may noted that during the course of recording the further statement, the appellant-accused had responded to the incriminating circumstances brought to his notice, after fully understanding them as transpiring from the answers recorded by the court. It is possible that the incident in question would have created an anguish amongst the public at large as also amongst the media, nonetheless in absence of any material on record, no inference could be drawn that because of such media pressure, the trial was not conducted in fair manner. [Paras 33, 34][195-G; 196-E-G; 197-A-B]

1.7 Having regard to the proved circumstances on record, more particularly the circumstances that preceded and followed from the point the deceased-victim was seen last together with the appellant-accused, the court has no hesitation in holding that the prosecution had proved beyond reasonable doubt all the circumstances individually and also proved the circumstances forming a chain, so conclusive as to rule out the possibility of any other hypothesis except the guilt of the appellant-accused. It was duly proved that while committing the barbaric acts of rape and sexual assault on the young child-victim aged about 04 years, the appellant-accused had inflicted bodily injuries as mentioned in the post-mortem report which had caused her death. The trial court had rightly convicted the appellant-accused for the offences punishable under sections 302, 376(2)(i), 376(2)(m), 363, 366 of IPC and section 5(i) read with section 6 and section 5(m) read with section 6 of the POCSO Act. The said order of conviction A B C D E F G H MOHD. FIROZ v. STATE OF MADHYA PRADESH 173 was affirmed by the High Court; and is being further affirmed by this Court. [Para 36][197-F-H; 198-A] A

1.8 The next question that falls for consideration is with regard to the sentence to be imposed on the appellant. While affirming the view taken by the courts below with regard to the conviction of the appellant for the offences charged against him, This Court deem it proper to commute, and accordingly commute the sentence of death for the sentence of imprisonment for life, for the offence punishable under Section 302 IPC. Since, Section 376A IPC is also applicable to the facts of the case, considering the gravity and seriousness of the offence, the sentence of imprisonment for the remainder of appellant’s natural life would have been an appropriate sentence, however, this Courtis reminded of what Oscar Wilde has said - “The only difference between the saint and the sinner is that every saint has a past and every sinner has a future”. One of the basic principles of restorative justice as developed by this Court over the years, also is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual, when he is released from the jail.

The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender. Hence, while balancing the scales of retributive justice and restorative justice, this Courtdeems it appropriate to impose upon the appellant-accused, the sentence of imprisonment for a period of twenty years instead of imprisonment for the remainder of his natural life for the offence under section 376A, IPC. The conviction and sentence recorded by the courts below for the other offences under IPC and POCSO Act are affirmed. It is needless to say that all the punishments imposed shall run concurrently. [Paras 37 & 43][198-B; 200-D- G; 201-A] Masalti vs. State of U. P. AIR 1965 SC 202 : [1964] SCR 133; Ajay Singh vs. State of Maharashtra (2007) 12 SCC 341 : [2007] 7 SCR 983; K. Anbazhagan vs. The superintendent of Police & Ors. (2004) 3 SCC 767 : [2003] 5 Suppl. SCR 610; Zahira Habibullah Sheikh & Anr.

Vs. State of Gujarat & Ors. (2006) 3 SCC 374 : [2006] 2 SCR 1081 – referred to. B C D E F G H 174 SUPREME COURT REPORTS [2022] 19 S.C.R. Sharad Birdhichand Sarda vs. State of Mahashtra 1984 (4) SCC 116 : [1985] 1 SCR 88; Mohan Singh vs. Prem Singh & Anr. (2002) 10 SCC 236 : [2002] 3 Suppl. SCR 5; Rajender vs. State (NCT of Delhi) (2019) 10 SCC 623; Satpal vs. State of Haryana (2018) 6 SCC 610; Surajdeo Mahto vs. The State of Bihar (2022) 11 SCC 800; Maneka Gandhi vs. UOI (1978) 1 SCC 248 : [1978] 2 SCR 621; Bachan Singh Vs. State of Punjab (1980) 2 SCC 684; Machhi Singh vs. State of Punjab (1983) 3 SCC 470 : [1983] 3 SCR 413; Shatrughna Baban Meshram Vs. State of Maharashtra (2021) 1 SCC 596 – relied on. Case Law Reference [1964] SCR 133 [2007] 7 SCR 983 referred to referred to [2003] 5 Suppl. SCR 610 referred to [2006] 2 SCR 1081 referred to [1985] 1 SCR 88 [2002] 3 Suppl. SCR 5 (2019) 10 SCC 623 (2018) 6 SCC 610 (2022) 11 SCC 800 [1978] 2 SCR 621 (1980) 2 SCC 684 [1983] 3 SCR 413 (2021) 1 SCC 596 relied on relied on relied on relied on relied on relied on relied on relied on relied on Para 20 Para 20 Para 20 Para 20 Para 22 Para 23 Para 27 Para 28 Para 29 Para 33 Para 38 Para 41 Para 42 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

612 of 2019. From the Judgment and Order dated 15.07.2014 of the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal Nos. 09, 2920 and 3132 of 2013. A B C D E F G H MOHD. FIROZ v. STATE OF MADHYA PRADESH 175 B. H. Marlapalle, Sr. Adv., Ms. Shreya Rastogi, Ms. Harini A Raghupathy, Satya Mitra, Advs. for the Appellant. P. V. Yogeswaran, AAG, Pashupathi Nath Razdan, Ms. Samridhi Jain, Astik Gupta, Ms. Sneh Bairwa, Prakhar Srivastav, Advs. for the Respondent. The Judgment of the Court was delivered by BELA M. TRIVEDI, J.

The present appeal was initially filed by the appellant-Bibi Sidhika, the mother of the accused Mohd. Firoz, challenging the legality and validity of the impugned common judgement and order dated 15.07.2014 passed by the High Court of Judicature, Madhya Pradesh at Jabalpur, in the Criminal Reference No. 09 of 2013, Criminal Appeal No. 2920 of 2013 and Criminal Appeal No. 3132 of 2013. During the pendency of the present appeal, the said appellant having expired, the accused Firoz has been substituted as the appellant in view of the order passed by this Court on 21.10.2021. Case of Prosecution : -

The case of the prosecution as unfolded before the trial court was that on 17.04.2013, at about 06:30 PM, one Rakesh Choudhary (original accused no. 2) came to the house of the informant Ramkumari (mother of the victim) along with an unknown person (the present appellant-original accused no. 1) and requested the said Ramkumari and her mother Himmabai to provide an accommodation to the said unknown person for a day, however, Himmabai refused to provide such accommodation. Thereafter, Rakesh Choudhary left and his friend sat for a while at the courtyard of the house of the complainant, where the victim aged about four years was playing with her brother Ramkishan and other cousins. After sometime, Ramkumari found that her daughter was missing and the other person (the accused no. 1) was also not there. She along with others tried to search her daughter at the nearby places, however, her daughter was not found.

In the meantime, Mr. R.D. Barthi, In-charge Inspector, Police Station, Ghansaur, on the missing person report given by Ramkumari Bai had started investigation and found that the accused Firoz Khan (the present appellant), who was working in Jhabua Power Plant had taken away the victim deceitfully. He therefore registered an FIR being no. 68 of 2013 against the accused at about 06:40 AM on 18.04.2013 for the offences under Section 363 and 366 of IPC. The accused Rakesh Choudhary came to be arrested on 20th April 2013 and the appellant- accused Firoz was arrested on 23rd April, 2013 from Husainabad, Police Station Mojahidpur, Balsaur, Bhagalpur, Bihar.

The investigating officer after completing the investigation laid the charge-sheet against both the accused before the trial court. The accused Mohd. Firoz was charged for the offences under sections 363, 366, 376(2)(i), 376(2)(m) and 302 of IPC and under section 5(i), 5(m) and Section 6 of the Protection of Children from the Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act), and the accused Rakesh Choudhary was charged for the offences under sections 363 and 366 r/w Section 34 and under Section 109 of IPC and under Section 16/17 of the POCSO Act. Both the accused having abjured their guilt and claimed to be tried, the prosecution examined as many as 34 witnesses to prove their guilt. Both the accused denied the allegations levelled against them in their respective further statements recorded under section 313 of Cr.PC and stated that they were falsely implicated in the case. A B C D E F G H MOHD. FIROZ v. STATE OF MADHYA PRADESH [BELA M. TRIVEDI, J.] 177 The accused no. 2 Rakesh Choudhary in his defence examined two witnesses i.e., DW-1 Virendra Choudhary and DW-2 Gopal Prasad Ahirwar. The Sessions Court at Seoni after appreciating the evidence on record convicted both the accused for the offences charged against them and awarded death sentence to the accused Firoz for the offence under section 302 of IPC and directed to undergo rigorous imprisonment for a period of 07 years and pay fine of Rs. 2000/- for the offence under section 363, to undergo rigorous imprisonment for a period of 10 years and pay fine of Rs. 2000/- for the offence under section 366 of IPC, to undergo life imprisonment and pay fine of Rs. 2000/- for the offences under sections 376(2)(i), 376(2)(m) of IPC and under sections 5(i)r/w 6 & 5(m) r/w 6 of POCSO Act. The Sessions Court directed the accused Rakesh Choudhary to undergo rigorous imprisonment for a period of 07 years and pay fine of Rs. 2000/- for the offences under section 363/34, to undergo rigorous imprisonment for a period of 10 years and pay fine of Rs. 2000/- for the offences under section 366/34 and to undergo life imprisonment and pay fine of Rs. 2000/- for the offence under section 109 of IPC and for the offences under section 16/17 of POCSO Act.

The reference made by the Sessions Court to the High Court of M.P. at Jabalpur, for the confirmation of the death sentence to the accused-Firoz was registered as Criminal Reference No. 09 of 2013. The accused Mohd. Firoz had also filed an appeal being Criminal Appeal No. 2920 of 2013 and the accused Rakesh Choudhary had filed an appeal being Criminal Appeal No. 3132 of 2013 before the High Court. The High Court vide the impugned common judgement and order dated 15.07.2014 allowed the Criminal Appeal No. 3132 of 2013 filed by the accused Rakesh Choudhary and acquitted him from the charges levelled against him, however, dismissed the Criminal Appeal No. 2920 of 2013 filed by the accused Mohd. Firoz and confirmed the death sentence awarded to him. Being aggrieved by the same, the appellant has preferred the present appeal before this Court. Evidence: -

In order to prove the guilt of the accused, the prosecution had examined three sets of witnesses. In the first set, the relatives and acquaintances of the informant- Ramkumari, mother of the victim, were examined. The informant Ramkumari deposed inter alia that on 17th April, 2013 at about 7.00 p.m., when she came home after finishing her work, she saw that one person (the accused-Firoz Khan) was sitting on A B C D E F G H 178 SUPREME COURT REPORTS [2022] 19 S.C.R. a chair in the courtyard of her house and Rakesh Choudhary (the other accused) was sitting on the platform of the courtyard. According to her, Rakesh Choudhary was telling her mother Himmabai that “Amma Bhaijaan will sleep here”, however, her mother refused. After the said conservation, she did not know where the said Choudhary had gone but Bhaijaan (Firoz) kept sitting on the chair. At that time, her daughters Pooja, Madhu, her brother’s son- Ramkishan and her sister’s son Nilesh all were playing in the courtyard.

The prosecution, in order to prove that the victim was last seen together with the accused-Firoz had examined PW-31 Ramkishan Yadav. The said Ramkishan aged about four years happened to be the son of PW-5 Shyam Yadav i.e., brother of Ramkumari. Ramkishan deposed before the Court inter alia that Firozbhai had come to their home and then had taken him and Pooja to a fruit shop. Firozbhai had given him three bananas and biscuits and thereafter asked him to go home, however, had taken Pooja with him. Identifying the accused-Firoz sitting in the Court, Ramkishan had stated that he was Firoz Bhaijaan who had taken her sister Pooja with him and thereafter Pooja was found dead. He specifically denied in the cross-examination that after Firoz Bhaijaan gave bananas and biscuits to him, Pooja also came along with him.

PW-4 Nitin Namdev was the fruit seller. He deposed that on 17.04.2013 at about 7.00 pm, one person wearing a white shirt and black full pant had come with one girl and a boy, both aged about four years, and had purchased six bananas from his shop for Rs.20/-. He also identified the accused-Firoz sitting in the Court and stated that he had come to his shop. He further stated that the said person had given three bananas to the boy and asked him to go home and had taken the four years old girl with him, and then had gone towards the crossing. On the next day he came to know that a person named Firoz working in the Power Plant had committed rape on the girl and had killed her, and that he was the same person who had bought bananas from his shop. In the cross-examination, he had stated that after some days of the incident, the Tehsildar had asked him to come to a school, where he had identified the accused Firoz.

PW-5 Shyam Yadav who happened to be the brother of Ramkumari and maternal uncle of the victim, had stated that he was not staying with his mother and sister, however, on the day, when the victim was found missing, he had stayed back with them. On the next day morning, the Village Kotwar Santosh Das had come and informed him that a girl was lying in the field of Badri Yadav. He therefore went to the field along with the Kotwar and saw that the girl-Pooja was lying unconscious and blood was oozing from her nostrils. He also saw her A B C D E F G H 180 SUPREME COURT REPORTS [2022] 19 S.C.R. underwear, skins of bananas and some money lying near her body. He took Pooja first to the police station Ghansaur and from there took her to the Ghansaur Hospital for treatment. According to him, since her condition was very critical, she was taken to the Hospital at Jabalpur and thereafter to the hospital at Nagpur for treatment, however, she died there.

In the second set of witnesses, the prosecution had examined the doctors who had treated the victim. PW-17 Dr. Bharti Sonkeshariya, the Medical Officer at the Community Health Center, Ghansaur had examined the victim at about 7.30 a.m on 18.04.2013. She had stated that the patient was unconscious, and blood was oozing from her nose and also from her vagina. As her condition was very critical, she was referred to the Medical College, Jabalpur. Her Medical Report was marked as Exhibit P-36. PW-20 Dr. Bharti Sahu, Assistant Professor at Medical College, Jabalpur had stated that on 18.04.2013 at about 9.30 a.m. one girl named Pooja was brought for treatment by the police constable Dilip Rajput of police station, Ghansaur and she had found that Pooja was unconscious and was having seizures. After referring to the injuries, she had opined in the medical report (Exhibit P-40) that the victim’s hymen was found ruptured due to sexual intercourse and that a rape was committed on her. PW-21 Dr. Hemant, a Private Medical Practitioner (Pediatrician) at Jabalpur Hospital, Jabalpur had also examined Pooja and carried out C.T. Scan. He had found swelling in her brain. She was kept on the ventilator, but her condition was very critical and, therefore, she was shifted to Nagpur.

PW-29 Dr. Deepak Ramratan Goyal, Pediatric Surgeon at the Care Hospital, Nagpur had deposed that on 20th April, 2013 at about 11.00 p.m. Kumari Pooja Yadav was brought to the Hospital by air ambulance from Jabalpur Research Centre. The girl was unconscious and was kept on artificial respiration. She was immediately admitted in the Intensive Care Unit of Children. He had found swelling in her brain due to deficiency of oxygen, and several injuries on her vaginal area. According to him, in spite of all the efforts, the girl could not be saved and she died on 29th April, 2013 at about 7.45 P.M. In his opinion, the cause of death was “Hypoxic Ischemic Encephalopathy with vaginal injury with cardiorespiratory arrest” i.e., she died due to cardiorespiratory arrest due to deficiency of oxygen in the brain, due to pressing of mouth and neck and due to excessive injury in the genital organ. The medical report given by him was marked as Exhibit P-50. A B C D E F G H MOHD. FIROZ v. STATE OF MADHYA PRADESH [BELA M. TRIVEDI, J.] 181

The post-mortem of the victim was conducted by PW-24 Dr. Pradeep Gangadhar Dixit, Professor and H.O.D in Forensic Medicine Department, Medical College, Nagpur, on 30th April, 2013, along with his colleagues. He had recorded the following in the post-mortem note (Exhibit P-44) - “1. The dead was wearing a shirt and Pajama of the Hospital. There were 8 teeth in upper portion and 10 temporary teeth on the lower portion of mouth. Right upper incisor tooth and left upper lateral incisor tooth were absent. Left upper central incisor tooth was loose with blue colored swollen gums of its surroundings.

1. On examination of the external genitals, I had found that labia majora and labia minora contused, oedematous with blue discolouration. Superficial partially healed vulva laceration present at 6 “O” clock position of size 0.3 cm x 0.3 cm. Vaginal canal oedematous and hyperemic. Hymen torn at 3.6 and 7 O’clock position. Dilatation of hymenal opening. Urethral meatas oedematuous and bruised present.

2. The following injuries were found on the body of deceased: -

1. Partially healed lacerated wound present over upper lip in midline involving mucosal area of size 0.2. cm x 0.2 cm muscle deep surrounding area contused, bluish.

2. Partially healed lacerated wound present over lower lip in midline involving mucosal area of size 0.2 x 0.2 cm muscle deep surrounding area contused, bluish.

3. Abrasion present over lateral aspect of neck on right side, 3 cm below tip of right mastoid bone of seize 2 cm x 2 cm dark brown.

4. Abrasion present 2 cm below of injury no. 3 of size 2 cm x 0.3 cm.

5. Abrasion present over area overlying right submandibular region of size 0.3 cm x 0.3 cm.

6. Abrasion present over nape of neck on right side at the level of C-7 vertebra of size 0.4 cm x 0.4 cm. A B C D E F G H 182 SUPREME COURT REPORTS [2022] 19 S.C.R. A B C D E F G H

7. Abrasion present over right intra scapular region of size 0.2 cm x 0.2 cm.

8. Abrasion present over left scapular region of size 1.5 cm x 0.5 cm.

9. Multiple abrasions present over lower portion of stomach at right side of size varying from 0.3 cm x 0.2 cm to 0.2. cm x 0.1 cm.

10. Multiple linear abrasions present over posterior aspect of left thigh, middle 1/3rd part over an area of size 4 cm x 3 cm of size varying from 4 cm x 0.2 cm to 3 cm x 0.1 cm.

11. Tracheotomy wound present over anterior aspect of neck with stiches in situ which is done for ventilator.

12. A hole over right side of next which is made to assess the central venous pressure.

Puncture marks present over both elbow of hands, upper portion of right wrist, dorsum of right hand and both legs for administering I.V. fluids.

On conducting internal examination of the body, I had found the following: -

1. Symptoms of pneumonia were found in her right lung. Blood clotted over internal muscles of the neck. All the organs were found congested. Brain was found edematous.”

13. The said doctor had deposed that all the injuries found on the body were ante-mortem and the opinion regarding the cause of death was kept reserved. Thereafter, on 15.05.2013, the histopathology report (Exhibit P-46) was received from the Pathology Department, Medical College, Nagpur, in which the final cause of death reported was “bronchopneumonia and cerebral hypoxia, which was caused by smothering the nose and mouth.”

14. The accused Firoz was medically examined by PW-18 Dr. Dipendra Sallame, the Medical Officer at C.H.C. Lakhnadon, District Seoni on 25.04.2021 and after his examination, he had opined that the accused Firoz was capable to do sexual intercourse. Doctor had prepared and sealed two semen slides of the semen of Mohd. Firoz and had also MOHD. FIROZ v. STATE OF MADHYA PRADESH [BELA M. TRIVEDI, J.] 183 sealed a black coloured underwear of the said Firoz encircling a white spot, and had handed over the same to the said Constable. His examination report was exhibited as Exhibit P-39. PW-23 Dr. Vinod Dahayat, the Medical Officer at District Hospital, Seoni to whom the accused Firoz was brought on 04.05.2013, had taken his blood sample for the D.N.A. test. He had also attested the photograph of accused Firoz. The said Doctor had identified the accused Firoz sitting in the Court by stating that he was the same person whose blood sample was taken and whose photograph was attested by him.

PW-25 Dr. Pankaj Shrivastava, Scientific Officer at F.S.L., Sagar had received the Articles relating to the present case through the letter dated 21.04.2013 of the Superintendent of Police, Seoni brought by the Constable, Police Station Ghansaur on 24.04.2013, and through the letter dated 04.05.2013 of Superintendent of Police Station, Seoni brought by the Constable, Police Station Ghansaur on 06.05.2013 for conducting the D.N.A. test. He had stated that at the time of examination, all the Articles were found in sealed condition and the seals were found intact. He had also stated about the method used by him to obtain the D.N.A. from the received Articles and also about the opinion (Exhibit P-47) given by him on the basis of D.N.A. examination. He had opined as under - “(i)Identical female D.N.A. profile was obtained from the source frock and vaginal smear slide of Pooja Yadav (Article “A”), frock and swab (Article “F”) and blood sample (Article “G”). (ii)The D.N.A. profile obtained from the hair (Article “B”) found from the place of incident and D.N.A profile obtained from the source blood sample (Article “I”) of the accused Firoz is identical, which confirms this fact that these hair strands are of the accused Firoz.”

The last set of witnesses examined by the prosecution comprised of the Police Witnesses, panch Witnesses and the Tehsildar who had conducted the T.I. Parade. PW-13 Mohammad Sultan was the Assistant Sub Inspector at the Police Station, Ghansaur. He alongwith the DSP R.N. Parteti had found the hair strands and skins of bananas in the field and had sealed them as per the seizure memo (Exhibit P-10) dated 20.04.2013. He had also stated that on 21.04.2013, he had received A B C D E F G H 184 SUPREME COURT REPORTS [2022] 19 S.C.R. A B C D E F G H from the Constable Dilip, a sealed yellow envelope containing a Frock and vaginal slides of the deceased in presence of the witnesses and had prepared the Seizure Memo (Exhibit P-29). PW-15 Head Constable Niyaz Ahmad at Police Station Ghansaur had registered the missing person report at Sanha no. 747 as stated by Smt. Ramkumari Yadav on 17.04.2013 at 20:35.

PW-30 S. Ram Maravi, the Sub Inspector, In-charge Police Station at Police Station Kindrai, District Seoni (M.P.) was part of the team constituted by the Superintendent of Police, Seoni for search and arrest of the accused Firoz. According to this witness, he alongwith others had gone to Bhagalpur, Bihar and after collecting the call details of the accused, his location was found out with the cooperation of the local police of Bhagalpur. The accused Firoz was arrested from a place near a mosque situated near the house of his aunt on 23.04.2013, and was brought back after obtaining the transit remand from the concerned Court at Bhagalpur as per the order at Exhibit P-50.

PW-33 In-charge Police Station, Ghansaur Mr. R.D. Barthi had conducted the investigation of the Missing Person Case No. 10/13, and during the course of investigation, it was found that the alleged offences were committed by the accused-Firoz. He therefore had registered the Crime No. 68/13 for the offence under Section 363, 366 of I.P.C. (Exhibit P-60) against the accused. He had stated about the investigation carried out by him and about the arrest of the accused Rakesh Choudhary. The D.S.P. Mr. R.N. Parteti who had carried out the further investigation was examined as PW-34. He had deposed about the details of investigation carried out by him till the chargesheet was filed in the case. PW-16 Tehsildar at Seoni Mr. Sudhir Jain had conducted the identification parade of the accused-Mohd. Firoz. According to him, the witnesses Smt. Ramkumari, Preeti Yadav, Nitin Namdev and Himmabai had identified the accused during the course of the T.I. Parade.

Significantly the accused-Firoz in his further statement recorded under Section 313 of Cr.P.C. had admitted about his visit to the house of the victim along with the other accused Rakesh Choudhary for making an inquiry about Shyam. The accused had also admitted having told the mother of Shyam that he (accused) had come from Gorakhpur and was staying in the house of Dassi Yadav. The accused also admitted about his arrest as per the arrest memo Exhibit P-54 and about he having been brought to Ghansaur after obtaining the transit remand from the Chief MOHD. FIROZ v. STATE OF MADHYA PRADESH [BELA M. TRIVEDI, J.] 185 Judicial Magistrate, Bhagalpur. The other accused-Rakesh Choudhary, (who has been acquitted by the High Court), in his further statement had admitted to the extent that he had gone along with the accused-Firoz to the house of Ramkumari, however, according to him after showing the house to the accused Firoz, he had left the house. He in support of his defence had examined two witnesses i.e., D.W-1 Virendra Choudhary who was residing adjacent to his house and DW-2 Gopal Prasad Ahirwar who had a footwear shop situated adjacent to the footwear shop of Virendra Choudhary. The Court is not required to deal in detail with the said evidence adduced on behalf of the accused-Rakesh, as he has already been acquitted by the High Court. His acquittal having not been challenged by the prosecution before this Court, the same has attained finality. Submissions:

Learned Senior Counsel Mr. B.H. Marlapalle, appearing for the accused-appellant appointed through the Supreme Court Legal Services Committee, while fairly not disputing the visit of the appellant- accused at the house of the victim on the date and time as per the case of the prosecution and also not disputing the medical reports of the victim, tried to highlight certain discrepancies appearing in the evidence of the witnesses examined by the prosecution. Placing reliance upon the decision of this Court in the case of Masalti vs. State of U. P.1, he submitted that while appreciating the evidence of the partisan and interested witnesses, the Court should be very careful in weighing such evidence. He also relied upon various decisions of this Court to substantiate his submission that the case of the prosecution being dependent on the circumstantial evidence alone, the entire chain was required to be proved beyond reasonable doubt by leading cogent evidence, which the prosecution had failed to prove.

Per contra, the learned Advocate Mr. P.V. Yogeswaran, appearing for the respondent-State vehemently submitted that this was one of the heinous and despicable crimes committed by the appellant- accused. The trial court and the High Court having relied upon the cogent evidence adduced by the prosecution and convicted the appellant, this Court may not re-appreciate the evidence which has already been properly appreciated by the said two courts. According to him, the appellant- accused by admitting his visit at the house of the victim along with Rakesh Chaudhary, admitting his arrest as per the case of the prosecution and by not disputing the medical reports of the victim had relieved, half of the burden of the prosecution to prove the allegations against him. He further submitted that every minor contradiction or discrepancies in the evidence of the witnesses cannot be termed as major contradictions requiring the court to throw the evidence of prosecution overboard. It was duly proved that the victim was lastly seen in the company of the accused and it was within special knowledge of the accused as to what happened to the victim after he took her with him from the shop of fruit