The State of Tripura v. The State of Tripura

In course of hearing of arguments, Mr. S. Sarkar, Learned Senior counsel appearing for the appellant-convict has submitted that the Court below has failed to appreciate the law, facts and evidences and circumstances of the case. Moreover, he has stated that the examination of the appellant under Section 313 of Cr.P.C. was not done in accordance with law by the Learned Sessions Court below. The Learned Trial Court has not taken into consideration that prosecution had failed to prove beyond reasonable doubt that it was the accused who had committed the offence of rape and murder of the deceased girl. The Court below has convicted the appellant merely on conjectures and surmises and hence, the order of conviction and sentence is liable to be set aside and quashed. According to Mr. Sarkar, Learned Senior counsel the Learned Court below has not taken into consideration the evidence of PW-11 who has stated that : “I know deceased Arya Debbarma aged about 4/5 years. Near about one year back one day in the morning I saw Arya Debbarma going towards a jungle. On being asked she told that she was going to her father.”

#7. According to Learned Senior counsel, the Learned Court below did not consider the fact that victim was neither going with the convict nor was last seen with him. He has further stated that if it is presumed that accused was not found in the marriage ceremony going on the village, that neither connect the accused with the crime in question nor an inference can be drawn that the accused is the author of the crime. The Court below did not take into consideration that when the victim girl was going towards the jungle she was alone. The facts elicited in cross-examination were not at all considered by the Learned Trial Court below and hence, the order of conviction and sentence is liable to be set aside and quashed. The Learned Court below has not taken into consideration the evidence given in the cross- examination by PW-28 where he has stated as follows : “In case of dead body, the seminal stain if present in the vaginal swab can be detected within 72 hours.”

#8. There are material discrepancies between the statements of the witnesses, yet this fact was not at all considered by the Learned Sessions Court below and hence, the order of conviction and sentence is liable to be set aside and quashed. PW-20 stated in his examination- in-chief stated that “the body was naked.” But PW-23 stated that “we found a half-naked dead body of a girl in the jungle.”

#9. He has further stated that there is a delay of three days for lodging the FIR of missing. Complainant even did not give any valid reason for the delay which puts the present FIR in question doubtful which the learned Trial Court did not consider while convicting the appellant.

#10. According to Learned Senior counsel a four-fold criticism is advanced against the reception of such evidence : “(i) First is that is not possible to test he correctness of the canine movements through the normal method available in criminal cases i.e. in cross-examination. (ii) Second is that the life and liberty of human beings should not be made to depend on animal sensibilities. (iii) Third is that the possibility of dog misjudging the smell or mistaking the track cannot be ruled out, or many a times such mistakes have happened. (iv) Fourth is that even today, the science has not finally pronounced about the accuracy of canine tracking.”

#11. The Court below has shifted the burden of proof most illegally on the defence and hence the order of conviction and sentence is liable to be set aside. Only on account of unfortunate rape and murder, liability could not be fastened upon the appellant without any admissible and legal evidence. The prosecution has tried to connect the appellant in crime in question without evidence of any eye- witnesses and it is a false and concocted story implicating the name of the convict person. During the process of investigation as well as in the development of the chain of events, the investigating officer did not record any statement of the independent officer and also did not record any statement of the independent neighbouring persons residing nearby, which creates a doubt about the investigation of IO.

#12. The prosecution also has failed to prove the circumstances. Even, the circumstances could not form a complete chain for drawing inference that it was the accused persons who killed the deceased. The prosecution has further failed to establish the exact time of death of the deceased. The medical evidence as well as other evidence brought on record by the prosecution clearly stated that “time of since death : 5 to 7 days.” Therefore, time of death is not established and proved by the prosecution. In the absence of time of death it is highly unsafe to connect the accused within the crime in question.

#13. It has been further alleged that merely a alleged chappal was found on the next day of the recovery of body by the police near the place where the deceased body was lying which may create a suspicion about involvement of the accused for want of appropriate explanation of the prosecution in this regard, however, that suspicion cannot take place of legal proof and unless and until there are other corroborative circumstances on record. The Court below has not taken into consideration that it creates serious doubts that the case against the appellants was a frame-up and was manipulated. The Court below has not taken into consideration that the accused used to go out of the village and come back after 5/6 days, which was a normal practice for him. The statement of PW-18 was not considered in this regard.

#14. In order to buttress his submission, Learned Senior counsel has relied on a decision of the Supreme Court of India in Manoj and Others versus State of Madhya Pradesh reported in (2023) 2 SCC 353 which reads as under : “………Collection and Preservation of Evidence If DNA evidence is not properly documented, collected, packaged, and preserved, it will not meet the legal and scientific requirements for admissibility in a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victim(s), suspect(s), scene of crime for solving the case should be identified, preserved, packed and sent for DNA Profiling.”

#152. In an earlier judgment, R v Dohoney & Adams : (1997) 1 Cr. App Rep 369 (CA) the UK Court of Appeal laid down the following guidelines concerning the procedure for introducing DNA evidence in trials: (1) the scientist should adduce the evidence of the DNA 41 1997 (1) Crl App Rep 369 comparisons together with his calculations of the random occurrence ratio; (2) whenever such evidence is to be adduced, the Crown (prosecution) should serve upon the defence details as to how the calculations have been carried out, which are sufficient for the defence to scrutinise the basis of the calculations; (3) the Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been based.

#153. The Law Commission of India in its report : 185th Report, on Review of the Indian Evidence Act, 2003 observed as follows: “DNA evidence involves comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not “match”, then this will prove a lack of identity between the known person and the person from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples, an approximate number reflecting how often a similar DNA "profile" or "fingerprint" is found. It may be, for example, that the relevant profile is found in 1 person in every 100,000: This is described as the ’random occurrence ratio’ (Phipson 1999). Practical guidelines to collect mitigating circumstances

#248. There is urgent need to ensure that mitigating circumstances are considered at the trial stage, to avoid slipping into a retributive response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage.

#249. To do this, the trial court must elicit information from the accused and the state, both. The state, must - for an offence carrying capital punishment - at the appropriate stage, produce material which is preferably the Sessions Court collected beforehand, before disclosing psychiatric and psychological evaluation of the accused. This will help establish proximity (in terms of timeline), to the accused person‟s frame of mind (or mental illness, if any) at the time of committing the crime and offer guidance on mitigating factors (1), (5), (6) and (7) spelled out in Bachan Singh. Even for the other factors of (3) and (4) - an onus placed squarely on the state – conducting this form of psychiatric and the heels of psychological evaluation close on commission of the offence, will provide a baseline for the appellate courts to use for comparison, i.e., to evaluate towards reformation, achieved during the incarceration period. the progress of the accused family family background (surviving

#215. Next, the State, must in a time-bound manner, collect additional information pertaining to the accused. An illustrative, but not exhaustive list is as follows: a) Age b) Early family background (siblings, protection of parents, any history of violence or neglect) c) Present members, whether married, has children, etc.) d) Type and level of education e) Socio-economic background (including conditions of poverty or deprivation, if any) f) Criminal antecedents (details of offence and whether convicted, sentence served, if any) g) Income and the kind of employment (whether none, or temporary or permanent etc); h) Other factors such as history of unstable social behaviour, or mental or psychological ailment(s), alienation of the individual (with reasons, if any) etc. This information should mandatorily be available to the trial court, at the sentencing stage. The accused too, should be given the same opportunity to produce evidence in rebuttal, towards establishing all mitigating circumstances.” According to Learned Senior counsel, this is not a case that DNA is unique that they matches up ourselves who have similar DNA. DNA may be used for the purpose of investigation but not for racing any presumption of identity in a Court of law.

#15. Further, Learned senior counsel has referred the above judgment regarding reliability of DNA evidence in a criminal trial and the relevant paras are extracted hereunder : “154. In Dharam Deo Yadav v. State of U.P. : (2014) 5 SCC 509 this court discussed the reliability of DNA evidence in a criminal trial, and held as follows: “The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made-up of a double standard structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, cytosine pyrimidines…..DNA usually can be obtained from any biological material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be a moot question, but the fact remains that such test has come to stay and is thymine purines being used extensively in the investigation of crimes and the Court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in Court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory.

#155. The US Supreme Court, in District Attorney’s Office for the Third Judicial District v. Osborne : (2009) SCC OnLine US SC 73 dealt with a post-conviction claim to access evidence, at the behest of the convict, who wished to prove his innocence, through new DNA techniques. It was observed, in the context of the facts, that : “Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue…. DNA testing has exonerated wrongly convicted people, and has confirmed the convictions of many others.”

#156. Several decisions of this court - Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh : (2009) 14 SCC 607, Santosh Kumar Singh v. State : (2010) 9 SCC 747, State of T. N. v. John David : (2011) 5 SCC 509, Krishan Kumar Malik v. State of Haryana : (2011) 7 SCC 130, Surendra Koli v. State of U.P. : (2011) 4 SCC 80, Sandeep v. State of U.P. : (2012) 6 SCC 107 , Rajkumar v. State of M.P. : (2014) 5 SCC 353 and Mukesh v. State (NCT of Delhi) : (2017) 6 SCC 1 have dealt with the increasing importance of DNA evidence. This court has also emphasized the need for assuring quality control, about the samples, as well as the technique for testing in Anil v. State of Maharashtra : (2014) 4 SCC 69. “18. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. DNA profile is valid and reliable but variance in a particular result depends on the quality control and quality procedure in the laboratory.” tremendous impact on

#157. This court, in one of its recent decisions - Pattu Rajan v. State of T.N. : (2019) 4 SCC 771, considered the value and weight to be attached to a DNA report: “52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party.”

#158. This court, therefore, has relied on DNA reports, in the past, where the guilt of an accused was sought to be established. Notably, the reliance, was to corroborate. This court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case.” From the above quoted paras it is clear that the Hon‟ble Apex Court has nowhere said that it is infallible, it is fallible like any other evidence.

#16. In Sharad Birdhichand Sarda versus State of Maharashtra reported in (1984) 4 SCC 116 the Hon‟ble Apex Court has observed as follows : “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 where the following observations were made. 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 are the above five golden principles if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

#17. If we take a case where an accused after an offence has judicially confessed before the Magistrate. So, when trying the case how the Court proceed? Would we take the confession first and then proceed with the other evidence? The Apex Court in a catena of decisions have stated that the Court have to proceed with the other evidence and the confession has to be an added factor adding weightage to the other evidence on record. DNA is also same. In the absence of any other thing or any other circumstances linking him with the crime. If a person rapes a four to five year old girl there is also bound to be injuries in the private parts of the accused. So, only on the basis of a singular evidence which is not infallible and the circumstances on which it is done and the circumstances in which it is preserved are not beyond suspect. PW-28, the Dy. Director, DNA Typing Division of State Forensic Science Laboratory has stated in the cross-examination that he has stated that any biological sample can be preserved in dry form and packed in paper envelop. If, any liquid blood sample is collected, also preserved in dry form in gauze cloth as well as EDTA vial and preserved in ice box. This is the way it is supposed to be done, he does not say that he has done that. It is supposed to be done by the collectors. So, there is no evidence with the collectors how they have done the work, how they have preserved it.

#18. Learned Senior counsel during the course of his submission has referred to a decision of the Gauhati High Court in State of Assam versus Anupam Das reported in 2007 (3) GLT 697 as under : “27. In the light of the above we are of the opinion that the expression ”Magistrate” occurring under Section 26 of the Indian Evidence Act can only mean a Judicial Magistrate as the functions of a Magistrate recording a confession of a person in police custody is likely to expose the person making the confession to a punishment. This conclusion of ours gains further support from the very scheme of the provisions of Sections 25 to 27 of the Evidence Act. Section 25 of the Evidence Act makes a declaration in no uncertain terms that a confession made to a police officer shall not be proved against the accused. The rationale behind this declaration is too well settled by a catena of decisions to the effect that in the absence of such provisions the police are likely to extract confession from the accused by unwholesome methods. Section 26 of the Act is a great distinction to Section 25. While Sec 25 prohibits the proof of a confession made to a police officer, Sec 26 prohibits the proof of a confession made to any person while the accused is in the custody of police. Obviously, the provision is made in order to prevent the police from extracting confession from the accused while he ingeniously circumventing the prohibition of law contained under Sec 25 by making it appear that the confession was not in fact made to a police officer but somebody else. The scheme of the provisions of Sections 25 to 27 was examined by the Supreme Court in (1994) 2 SCC 467 : Bheru Singh Vs. State of Rajasthan wherein at para 16 the Supreme Court held: is under custody “16. . . . . . By virtue of the provisions of Section 25 of the Evidence Act, a confession to a police officer under no circumstance in evidence is admissible against an accused. The section deals with confessions made not only when the accused was free and not in police custody but also with the one made by such a person before any investigation had begun. The expression “accused of any offence” in Section 25 would cover the case of an accused who has since been put on trial, whether or not at the time when he made the confessional statement, he was under arrest or in custody as an accused in that case or not. Inadmissibility of a confessional statement made to a police officer under Section 25 of the Evidence Act is based on the ground of public policy. Section 25 of the Evidence Act not only bars proof of admission of an offence by an accused to a police officer or made by him while in the custody of a police officer but also the admission contained in the confessional statement of all incriminating facts relating to the commission of an offence. Section 26 of the Evidence Act deals with partial ban to the admissibility of confessions made to a person other than a police officer but we are not concerned with it in this case. Section 27 of the Evidence Act is in the nature of a proviso or an exception, which partially lifts the ban imposed by Sections 25 and 26 of the Evidence Act and makes admissible so much of such information, whether it amounts to a confession or not, as relates to the fact thereby discovered, when made by a person accused of an offence while in police custody. Under Section 164 CrPC a statement or the course of an confession made recorded by a investigation, may be Magistrate, safeguards imposed by the section itself and can be relied upon at the trial.” subject against Judiciary and itself extraction

#28. The Legislature was obviously of the view that any kind of confession by an accused while he is under the custody of police is not to be used as evidence against the accused at the time of the trial of any offence of which the accused is charged. A principle based on the experience of the lawmakers and the history of mankind. However, the Legislature recognized an exception to the rule contained under Section 26, i.e. a confession made by an accused, who is in the custody of the police, to some person other than a police officer, if such a confession is made in the immediate presence of a Magistrate. The only reason we can imagine is that having regard to the separation of powers between the Executive and requirement, belief and expectation that the Judiciary functions absolutely independent and uninfluenced by the authority of the Executives and, therefore, the presence of a Judicial Magistrate eliminates the possibility of confession being extracted from the accused by a police officer by methods which are not permissible in law. The presence of an is an independent Magistrate by assurance confession by legally impermissible methods. Even if any such impermissible influences are exercised on the accused before producing the accused before recording the confession the Legislature expected that the accused would have the advantage to complain to the Magistrate that he was being compelled to make a confession and on such a complaint the Magistrate is expected to protect the accused from the tyranny of police. A very sacred duty cast on the Magistrates, which must always be kept in mind by the Judicial Magistrates who are required to record or to be present at the time of recording the confessional statement by an accused while he was in the custody of the police. In the final analysis, any kind of compelled testimony by an accused person would be squarely violative of Article 20 Sub Article 3 of the Constitution. It is precisely for the above mentioned reasons the Parliament expressly stipulated certain duties Under Section 164(2) CrPC on the Judicial Magistrate statement Under Section 164 CrPC. It would be strange logic that while a statement recorded by a Judicial Magistrate Under Section 164 CrPC would be vitiated for non-compliance of the conditions stipulated Under Section 164(2) & (4) of the CrPC and cannot, therefore, be used against the maker of the statement, but the Magistrate contemplated Under Section 26 of the Evidence Act need not even be a Judicial Magistrate and, therefore, is under no obligation to comply with the requirements of Section 164(2) & (4) of the CrPC, but the confession recorded by such a magistrate can the Magistrate recording be proved establishing his guilt. against accused to reach an

#29. From the foregoing discussion we have no alternative but irresistible conclusion that the expression "Magistrate" occurring in Section 26 of the Evidence Act can only mean a Judicial Magistrate but not an Executive Magistrate.” Referring the same, Learned senior counsel has submitted that there was no scope to place any reliance on the statement of DCM, Executive Magistrate as she was not judicial Magistrate as mandated by the aforesaid citation.

#19. Mr. Raju Datta, Learned P.P. appearing for the State- respondent has argued keeping reliance upon the depositions of the witnesses and the evidences on record in consideration with the exhibits and material objects and further, he submitted that the present case is a crime of sexual offence against a minor child aged about 5 years who has not even gained the senses of the nature and consequences of the crime committed against her.

#20. The case is depending on circumstantial evidences and the evidences gathered during the trial has finally reached to a conclusion which pin-points to the guilt of the appellant herein. He further submitted that the accused was initially identified by a police sniffer dog. Thereafter, from the evidence of the father-in-law of the accused i.e. PW-4 who is an independent witness and relative of the accused. PW-4 has stated that: “……..the accused Abhijit Tripura is the husband of my daughter. At the time of inident the accused was in my house. Police came with a dog who caught the accused Abhijit Tripura. He was arrested by the police at night. Police recovered the dead body of the deceased from a jungle which was show by the accused. At the time of recovery of the dead body in the jungle I was also present. The accused showed the dead body. He also showed the place from where the dead body was recovered. The incident occurred before one year in the month of Fulguna according to BS. The accused Abhijit ripura raped and murdered Arya. The chappal which was found near the dead body in the jungle was worn by the accused Abhijit Tripura.” From the said evidence, it has been corroborated that the accused was identified by the police dog and later on, arrested by the police. There is no denial about the rape and murder of the victim in the cross-examination.

#21. Learned P.P. further referred the evidence of PW-1, Sri Ram Bahadur Debbarma. He has stated that : “Deceased Ariya Debbarma was my cousin. At the time of her death she was aged about 4/4 & 1/2 years. Near about one year back Abhijit Tripura raped Ariya Debbarma and killed her in the jungle. I know the accused as he was our co-villager.”

#22. In the cross-examination regarding rape and murder there is no denial. PW-18, Sri Mahendra Debbarma has stated that : “Baishak Ch. Debbarma is my co-villager. Before one year Abhijit Tripura raped Arya Debbarma and murdered her.”

#23. In respect of rape and murder there is no denial. The accused did not deny the facts that he has raped and murdered the deceased girl. PW-19, Sri Swapan Debbarma has stated that : “Before one year, one day a child of our village namely, Arya Debbarma aged about 5 years was missing. I along with the father of Arya searched Arya, but we did not find. The father of Arya informed police. Subsequently, Abhijit Tripura was arrested by police. He showed the dead body of Arya in a jungle. At that time I was there with police as a villager.”

#24. Learned P.P. has further referred the evidence of PW-20, Sri Paritosh Sarkar where PW-20 has stated that : “On 06.03.2021, again he was called by the police. He went to PS and found the accused Abhijit Tripura at the PS. The DCM was also present. The accused was narrating the incident in presence of DCM. I made a video of it. Afterwards, the accused went to the spot. Subsequently, they came to know that the original name of the accused was Kalikumar Tripura.”

#25. In respect of statement made by the accused before the DCM there is no cross-examination particularly on that issue he was under threat or like that. During 313 Cr.P.C. also the accused was silent. The accused did not say a single line about the incident or any statement recorded by the DCM nothing was said.

#26. Learned P.P. also referred the evidence of PW-23 who has stated that : “….. He stated that he raped and murdered one Arya Debbarma. He further stated that if, he is taken to the spot, he would be able to show the place of occurrence. Accordingly, we went to the spot led by the accused Abhijit Tripura. The spot was shown by the accused Abhijit Tripura. We found a half naked dead body of a girl in the jungle. The body was swollen. The body was recovered and sent for post-mortem examination.”

#27. In the cross-examination she has stated that : “I did not personally record the statement of the accused. When I reached the PS, police was with Abhijit. When we went to the spot, police and photographers were there with us. I introduced myself as Magistrate to Abhijit Tripura at the PS. It is not a fact that voluntarily Abhijit Tripura confess anything in my presence and did not lead us to the place of occurrence. It is not a fact that the accused did not show the dead body and the place of occurrence to us.”

#28. According to Learned P.P. DNA report has matched with the accused. During argument, he has highlighted the deposition of PW- 28, Dr. Subhankar Nath, Dy. Director, DNA Tying Division at SFSL, Narsingarh. In that deposition, Dr. Nath has categorically stated that Exbt.A (Dried blood of Sri Abhijit Tripura) matches with the Y-STR profile generated from Ext.Bi(vaginal swab of deceased). Learned P.P. also pointed out the deposition of PW-31, Dr. Jhutika Debbarma the concerned Doctor who conducted postmortem over the dead body of the deceased victim. PW-31, Dr. Jhutika Debbarma has specifically stated that how the victim was raped and she was murdered. In her deposition, Dr. Debbarma has clearly stated that : “The cause of death was opined as shock resulting injuries from multiple genital caused by forceful penetration of vagina by adult penis or penis sized object.”

#29. During cross-examination also Dr. Debbarma gave stress upon the genital injury (Injury No.7) to be fatal. Thus, the reason of death of the victim clearly points towards sexual assault and forceful penetration causing multiple genital injuries. Learned P.P. has also discussed about the disclosure statement (Exbt.21/1) of the accused person where the relevant portion has been pointed out by Learned P.P. and is extracted hereunder : “I reside in the slum of Nishan Chandrapara. I am staying there for the last one year as son in law who live in his father in law‟s house. The name of my wife is Annalaxmi Debbarma and I am staying in her father‟s house. ……..I came out of my house in the morning to bring timber from the jungle. At that time it was 8 O‟ Clock. A girl also came behind me. The name of the girl is Ariya Debbarma. She had passed me taking my right side. I also followed her to see that what she is doing. She was collecting woods in the jungle. Aftrer collecting the woods, I asked her whether she will not go to her house. Thereafter she slept in the jungle. Then once I have done a bad act. I have moved her a little. Thereafter (…) tied the neck (…..)by one “orna”(a piece of cloth) from a tree in „V‟ shape.”

#30. Similar statement has been made in the second time disclosure statement of the accused how the dead body of the girl was recovered. The disclosure statement has also corroborated with PW-

#11. PW-11 has also specifically stated that he saw the girl going towards a jungle and similar statement has been made in the disclosure statement of the accused.

#31. In the statement recorded under Section 313 Cr.P.C. the accused did not explain or even did not say anything about the disclosure statement that the said statement was made by force or the statement is not true or anything which he did not made. He only pleaded ignorance. It was his primary duty to say that the statements made before the DCM was not correct or under pressure he made this statement. He told nothing rather he was totally silent about the fact.

#32. Statement of PW-19 also stated that the dead body was recovered in his presence and the accused showed the place of occurrence and accordingly, the dead body was shown and it was recovered by the police. Learned P.P. also relied on Section 27 of the Evidence Act where it has been specifically stated that : “27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” information, whether

#33. In this respect, Learned P.P. has relied on a judgment of Supreme Court in Pattu Rajan versus State of Tamil Nadu reported in (2019) 4 SCC 771 where it has been stated as follows : “42.…….Be that as it may, if a confession is made by the accused before the police and a leads to the portion of the confession recovery of any incriminating material, such portion alone is admissible under Section 27 of the Indian Evidence Act. Since only such portion of the confession relating to the recovery of certain material objects was admitted in evidence and relied upon, such reliance was in accordance with law.” Thus, on the basis of confession and disclosure statement of the accused the dead body was recovered which attracts Section 27 of the Evidence Act and thus, the conviction is appropriate.

#34. In respect of Executive Magistrate, he has referred to another judgment of the apex Court in Ravi Chander and Others versus State of Punjab reported in (1998) 9 SCC 303 where it has been stated as follows : “6. ……..We have also looked at the reverse side of the page and considering the same it does not appear to us that there is any occasion to doubt that such writing was subsequently made by Executive Magistrate. The Executive Magistrate has also deposed in the case and he has specifically deposed the dying declaration in question and answer form. He has denied the suggestion in the cross- examination that there was any antedating or that he recorded fabrication on his part in recording the dying declaration. The Executive Magistrate is a disinterested witness and is a responsible officer. There is no circumstance or any material on record to suspect that he had any animus against the accused or was in any in fabricating the dying declaration.” interested

#35. Learned P.P. submitted that in the present case the statement which is recorded by the DCM who is not also an interested witness, her statement cannot be disbelieved as she is a responsible and independent Officer not from police Department, she has no enmity with the accused person. Thus, the conviction was appropriate considering the disclosure statement.

#36. In respect of DNA test, Learned P.P. has relied on a decision of the apex Court in Nandlal Wasudeo Badwaik versus Lata Nandlal Badwalk and Another reported in (2014) 2 SCC 576 where it has been stated that : “13…..It has been recognized by this Court in the case of Kamti Devi v. Poshi Ram : (2001) 5 SCC 311 that the result of a genuine DNA test is scientifically accurate. It is nobody‟s case that the result of the DNA test is not genuine and, therefore, we have to proceed on an assumption that the result of the DNA test is accurate. The DNA test reports show that the appellant is not the biological father of the girl-child.” Nowhere has it been stated that DNA test is not genuine. When there is no denial or suggestions then it is considered to be accurate. Initially, the convict-appellant has accepted the DNA report and in the appellate stage he cannot say that the DNA is not correct.

#37. In Dharam Deo Yadav versus State of Uttar Pradesh reported in (2014) 5 SCC 509 it has been stated that : “36……So far as this case is concerned, the DNA sample got from the skeleton matched with the blood sample of the father of the deceased and all the sampling and testing have been done by experts whose scientific knowledge and experience have not been doubted in these proceedings.”

#38. Learned P.P. has relied on an identical case of the apex Court in Manoj Pratap Singh versus State of Rajasthan reported in (2022) 9 SCC 81 wherein it was stated that : “83. We need not elongate this discussion by assembling various other decisions rendered in variegated circumstances and factual matrices but deem it appropriate to refer to the decision in the case of Shankar Kisanrao Khade v. State of Maharashtra: (2013) 5 SCC 546, wherein this Court surveyed a large number of cases on either side that is, where death sentence was upheld/awarded or where it was commuted; and pointed out the requirement of applying „crime test‟, „criminal test‟ and „rarest of rare test‟. This Court recounted, with to previous decisions, the aggravating circumstances (crime test) and the mitigating circumstances (criminal test) as follows: reference