Madhya Pradesh High Court
In Reference vs Veerendra Adivasi on 25 June, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
CRIMINAL REFERENCE NO.03 OF 2021
IN REFERENCE
Versus
VIRENDRA ADIWASI
Appearance:
Shri Nitin Kumar Gupta - Public Prosecutor for the reference-petitioner.
Shri Aditya Adhikari - Senior Advocate assisted by Shri Kaustubh
Chaturvedi - Advocate for the respondent.
CRIMINAL APPEAL NO.4401 OF 2021
VIRENDRA ADIWASI
Versus
STATE OF MADHYA PRADESH
Appearance:
Shri Pramod Singh Tomar - Advocate for the appellant.
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Shri Nitin Kumar Gupta - Public Prosecutor for the respondent-State.
Reserved on : 15.05.2025
Pronounced on : 25.06.2025
JUDGMENT
Per: Justice Vivek Agarwal
These cases originate from the impugned judgment dated 23.07.2021
passed by the learned Special Judge (POCSO Act)/Ninth Additional
Sessions Judge, Sagar, District Sagar (M.P.) in Special case No.37/2019
(State of Madhya Pradesh through Police Station Sanodha, District Sagar
Vs. Virendra Adiwasi S/o Nirpat), whereby the appellant-accused has been
convicted by the learned trial Court under Sections 363, 366A of IPC and
sentenced to undergo rigorous imprisonment for 7 years (fine of Rs.100/-)
and rigorous imprisonment for 10 years (fine of Rs.100/-), respectively, with
default stipulation to undergo additional rigorous imprisonment for 2
months on each count. The appellant is also convicted under Section 376(3)
read with Section 376(2)(f) of IPC and Section 5(n) read with Section 6 of
the Protection of Children from Sexual Offences Act, 2012 and sentenced to
life imprisonment and fine of Rs.100/- with default stipulation to undergo
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additional rigorous imprisonment for 2 months. The appellant is also
convicted under Section 302 of IPC and sentenced to death penalty i.e.
hanging till death and fine of Rs.200/- with default stipulation to undergo
additional rigorous imprisonment for 4 months.
2. Brief facts of the case are that, the victim/deceased is related to the
appellant. Intimation was received by SHO, Police Station Sanodha, District
Sagar on 07.04.2019 through control room, Sagar that a dead body was
lying in jungle near village Bodha Pipariya. When concerned SHO had gone
to the said jungle to verify the correctness of the information, then he had
seen dead body of the victim aged about 12 years in the jungle. Dehati Nalsi
was lodged by the father of the victim to the effect that he is a resident of
village Bodha and is working as a labourer. He has 3 sons and one daughter.
The victim/deceased is his daughter who has studied upto Class-5th. On
06.04.2019, there was a function in regard to their relative for which his
mother (PW-2) had gone along with the victim. They were returning on foot
when appellant Virendra had met his mother and said that she may move on
foot and he will take the victim on his bicycle. His mother (PW-2) had
returned back by 12 noon, but when the victim did not return, then
informant, father of the victim (PW-3) and mother of the victim i.e. PW-4
had gone to village Aapchand to find whereabouts of the victim. When
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victim and appellant were not found, then they returned back to their village
and caused inquiry. On inquiry, they were informed by villager Madan (PW-
5) that a girl is lying dead in the jungle, near Paran Nala. Then, PW-3 father
of the victim had gone to Paran Nala along with Magan, his brother-in-law
and other persons, where they had seen the girl lying dead. Intimation was
given to police. Merg was registered at 0/19 under Section 174, Cr.P.C.
3. As dead body of deceased was recovered at night, Shav Panchnama
could not be prepared. Relatives of the deceased, villagers and a constable
were left at the spot and then after returning to the police station, PW-23
Inspector Chandan Singh Parihar registered actual merg No.31/2019.
4. On 08.04.2019, PW-23 Inspector Chandan Singh Parihar had reached
the spot along with FSL team and dog squad, where after giving intimation
for preparation of Shav Panchnama, Shav Panchnama was drawn. Body was
found near a bush in half naked state. She was putting on a green red colour
Kurta which was above her chest and near her left leg was lying an
underwear and a torn piece of salwar. A plastic slipper was lying near the
dead body. At a distance of 1 feet from the dead body, a piece of salwar was
lying. There were signs of vomiting. There was swelling on lips, eyes and
throat. There were injury marks on the chin. Women witnesses had
examined private parts of the prosecutrix, who opined that there was
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swelling in the private parts and she had passed stool. Thereafter, dead body
was sent for postmortem.
5. Spot map (Ex.P-7), etc. were prepared, necessary samples were
collected. A white colour plastic button entangled with a green colour thread
was found, pieces of clothings, etc. were seized, merg statements of PW-2
grandmother of the prosecutrix and PW-3 father of the prosecutrix were
recorded.
6. It has also come on record that dog handler Constable Sudhanshu
Ahirwar (PW-12) left the dog from the scene of crime after dog smelled the
clothings of the prosecutrix, then dog travelled to village Aapchand upto the
house of the appellant Virendra Adiwasi, which is at a distance of about 7
kms. A panchnama was prepared, videography and photography were done,
short postmortem was conducted, on the basis of which case crime
No.131/2019 was registered at the police station Sanodha, District Sagar for
offence under Sections376(2)I, 302 of IPC and Sections 3/4 and 11/12 of the
Protection of Children from Sexual Offences Act, 2012.
7. Thereafter, next day accused Virendra was taken into custody from
Nayakheda Aapchand square. He admitted that he had taken the prosecutrix
on his bicycle and thereafter he had hidden that bicycle in the Gaushala
where husk is kept. He had also taken out his shirt out of the heap of husk
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and given it to the police for which memorandum and seizure memo were
prepared and then arrest memo was prepared.
8. It is further evident from the record that DNA test was carried out for
which MLC and Identification form were sent, blood sampling was done
and vide DNA report (Ex.P-30) it has come on record that vaginal slide of
the deceased (Article ‘G’), pubic hair (Article ‘H’), underwear (Article ‘I’)
and lower (Article ‘I’), contain Y-chromosome STR DNA profile which
matches with source ‘J’ i.e. blood sample of appellant Virendra and contains
similar Y-chromosome STR DNA profile.
9. Similarly, it has come on record that on the vaginal slide of the
deceased (Article ‘G’) as well as pubic hair of the deceased (Article ‘H’),
contain Autosomal STR DNA profile as obtained from blood sample of
appellant Virendra Adiwasi.
10. It is also mentioned that seized button (Article ‘C’), piece of salwar
(Article ‘D’) along with seized shirt of appellant Virendra Adiwasi (Article
‘K’) were sent to Physical Science Branch, SFSL (SGR) after sealing them
and putting an official seal.
11. It has also come on record that the threads of the shirt recovered at the
instance of the appellant, matched with the thread of the button which was
recovered from the spot.
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12. Shri Aditya Adhikari, learned Senior counsel submits that there are 3
witnesses on whose shoulder whole case has been based. PW-2
Grandmother of the victim, who is the witness of last seen, PW-6 Jolly @
Phool Singh Adiwasi is a police witness and PW-8 Dheeraj Adiwasi is an
eye and panch witness, but he is an antagonist witness as appellant is an
accused in a case qua his mother. It is further submitted that the doctor who
prepared DNA report is not examined.
13. Reliance is placed on the judgment of Hon’ble Supreme Court in case
of Karandeep Sharma @ Razia @ Raju Vs. State of Uttrakhand (2025)
SCC Online SC 773, to submit that in absence of scientist who conducted
DNA examination being not examined and report of DNA is not proved,
then the reports with regard to DNA profiling becomes highly vulnerable. It
is submitted that on the basis of such DNA report, conviction cannot be
based. It is submitted that it does not fulfill the requirements of Section 293,
Cr.P.C.
14. It is further submitted that button seized vide Ex.P-21 was sent for
examination after 8 months and 20 days for FSL examination. It was seized
on 08.04.2019, as is evident from Ex.P-21, but was sent for FSL
examination on 27.12.2019 and, therefore, on the basis of said piece of
evidence, no firm opinion can be drawn to record finding of conviction of
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the appellant. It is further submitted that when the evidence on record is
taken in totality, then it is not a case for conviction, but it is a case for
acquittal.
15. Similar arguments have been raised by Shri Pramod Singh Tomar,
learned counsel for the appellant. He submits that appellant is innocent and
he has been falsely implicated. Evidence of PW-2 Grandmother of the
victim is not trustworthy. Merely matching of DNA sample as reported vide
Ex.P-30 is not a sufficient circumstance to uphold conviction of the
appellant.
16. Learned senior counsel for the accused further submits that in fact
learned Third Additional Sessions Judge, Sagar in S.T. No.109/2020 (State
of Madhya Pradesh Vs. Virendra Singh S/o Nirpatsingh Adiwasi) convicted
the appellant Virendra Singh S/o Nirpatsingh Adiwasi in a similar matter
involving a lady of about 80 years of age under Sections 450, 376, 302 of
IPC and it is his duty to bring such facts to the knowledge of this Court to
consider aggravating and mitigating circumstances.
17. In the same breath, it is also submitted that coordinate Bench of this
Court in criminal appeal No.1973 of 2013 decided on 28th April, 2025:
Prakash Vs. The State of Madhya Pradesh, has placed reliance on the
judgment of Hon’ble Supreme Court in case of Karandeep Sharma @
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Razia @ Raju (supra) and has held that “Paragraph 39 of the said judgment
passed by the Supreme Court is unequivocal, unambiguous and specific,
leaving nothing to doubt. It has held conclusively that DNA report cannot be
accepted under Section 293 of the Cr.P.C., and that it is mandatory to
examine the expert, who carried out the DNA test, in order to establish the
findings and also in order to demonstrate to the trial Court, the experiments
and procedures carried out by him in order to comply and satisfy the
Provision of Section 51 of the Evidence Act. Section 51 would apply in all
such cases, where an expert is examined as a witness under Section 45 the
Evidence Act.”
18. Thus, it is submitted that in the present case, since the expert who
carried out the DNA examination is not examined, therefore, on the basis of
DNA report, no conviction can be recorded. In the alternate, it is submitted
that looking to the age of the appellant being 24 years, there are chances of
his rehabilitation in the society and also taking this fact into consideration
that the appellant comes from an underprivileged and neglected section of
the society, this Court should consider converting the death penalty into that
of life imprisonment for a fixed duration in terms of the judgment of
Hon’ble Supreme Court in case of Swamy Shraddananda @ Murali
Manohar Mishra Vs. State of Karnataka, (2008) 13 SCC 767.
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19. Shri Nitin Kumar Gupta, learned Public Prosecutor, in his turn,
submits that it is not a simple case where acquittal can be recorded. There is
evidence of last seen given by grandmother of the victim (PW-2). It is also a
case where dog handler PW-12 Constable Sudhanshu Ahirwar had made the
dog sniff the clothings of the deceased and had left the dog from the scene
of crime and the dog had straightaway reached the house of the appellant
and, therefore, evidence of PW-12 cannot be brushed aside. Besides this, it
is submitted that no fault could be pointed out in the collection of samples
for DNA examination and admittedly they were sent promptly within two
days of collection. Therefore, no adverse inference can be drawn from the
DNA reporting.
20. Referring to Section 293, Cr.P.C. it is submitted that Section 293 itself
provides considerable latitude to the concerned Court to summon and
examine any such expert as to the subject-matter of his report. It is, thus,
submitted that conviction of the appellant deserves to be maintained,
especially in view of the evidence which has come on record and also taking
into consideration the fact that the appellant is habitual violator of privacy
and appears to be a person of perverted mind, inasmuch as, after violating
privacy of a 80 years old woman for which he has been convicted in ST
No.109/2020, arising out of case crime No.105/2019 registered at Police
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Station Sanodha, District Sagar under Sections 376, 302 of IPC, he soon
committed another offence with a 12 years old girl, therefore, no leniency is
called for.
21. After hearing learned counsel for the parties and going through the
record, following issues emerge for consideration of this Court:-
(1) Whether evidence of PW-2 Grandmother of the prosecutrix and
PW-12 Sudhanshu Ahirwar, dog squad handler, have remained
unrebutted or there are some loopholes in that story?
(2) Another issue which arises is as to whether under the facts and
circumstances of the present case, order of the coordinate Bench
in Prakash Vs. The State of Madhya Pradesh (supra) can be
taken as a binding precedent, looking to the fact that report of
Forensic Science Laboratory as contained in Ex.P-30 clearly
makes mention of the fact that the samples which were received
by the Forensic Science Laboratory were intact and the seal on
the samples were found to be intact?
(3) Similarly, a issue arises as to whether another Forensic Science
Laboratory report (Ex.P-29) in relation to the shirt button which
was recovered from the spot was having same threads as were
found on the shirt recovered at the instance of the appellant
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from a heap of husk in his courtyard, are sufficient
circumstances to connect the appellant with the crime or not?
(4) Another issue which emerges is that whether in case the
evidence points out towards the guilt of the appellant, then
whether it is a fit case to uphold death penalty or there are
mitigating circumstances available to convert appellant’s
sentence from death penalty to that of life imprisonment for a
fixed period in the light of law laid down by Hon’ble Supreme
Court in case of Swamy Shraddananda @ Murali Manohar
Mishra (supra)?
(5) What will be the impact of the subsequent conviction order
passed in S.T. No.109/2021?
22. The facts of the case which are undisputed are that on 6.4.2019,
prosecutrix had gone to village Aapchand with her grandmother for
attending the rites of Nirpat Adiwasi. On 7.4.2019, at about 8.00 a.m. the
prosecutrix, a 12 years old girl and her grandmother (PW-2), left village
Aapchand. When they were way back to their home from Village Aapchand,
accused approached them and offered to take the prosecutrix home on his
bicycle. Grandmother of the prosecutrix (PW-2), walked home on foot and
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there she discovered that prosecutrix was missing. Grandmother of the
prosecutrix (PW-2), inquired with individuals, namely, Monu and Uttam
Adiwasi (PW-9), but they had no information. In the evening, when PW-4
mother of the prosecutrix returned home, she was informed by PW-2 that
the accused had taken the prosecutrix, who was still missing. PW-4 mother
of the prosecutrix along with Bhandu and Monu searched for the girl on a
motorcycle, but were unsuccessful.
23. PW-5 Madan Adiwasi, while collecting wood in the forest, found a
dead body beneath a tree near Paran Nala and reported it to the villagers.
Villagers gathered at the scene when Vrindawan Adiwasi (PW-10) informed
the police on dial 100.
24. The police visited the scene and registered a ‘Zero’ number Merg
intimation and recorded the statements of PW-3, father of the victim. They
had left the spot after securing it, as it was night and came back to the spot
on 8.4.2019. They had drawn Lash Panchayatnama (Ex.P-5), Naksha
Panchayatnama (Ex.P-6), Property Seizure memo (Ex.P-8) and had recorded
statements of PW-3 father of the victim. They had sent the dead body for
postmortem. Ex.P/18 is the postmortem report and Ex.P/21 is the short
postmortem report. FIR is Ex.P/22, Identification Form is Ex.P/24 and 161
Cr.P.C. statements of PW-2 grandmother of the victim is Ex.D-1. Duty
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report of the Dog Squad is Ex.P-13. Property seizure memo is Ex.P-19.
Appellant was arrested vide arrest memo (Ex.P-20). His memorandum
statement under Section 27 of the Indian Evidence Act were recorded vide
Ex.P-19, and then property seizure memos was recorded at the instance of
the appellant vide Ex.P-21. Statement of the father of the victim under
Section 161 Cr.P.C. is Ex.D/2. Identification form of the accused is
Ex.P/10. Appellant’s blood sample was drawn vide Ex.P/15.
25. On 10.4.2019, at about 3:20 p.m., seizure memo was made vide
Ex.P/16. On 12.4.2019, 161 Cr.P.C., statements of various witnesses were
recorded. Ex.P/14 is the certificate of dog proceedings in which it is
mentioned that in case crime No.131/2019, under Section 376(2)(1), 302,
IPC and Sections 3, 4, 11, 12 of POCSO Act, place of incident was Paran
Nala jungle, Village Pipariya Bodha, Police Station Sanodha. The certifier
(PW-12) had gone and had made him smell slippers and clothings of the
victim and had left the dog who came running for a distance of seven
kilometers through jungle via village Aapchand and reached the house of
the suspect Virendra Adiwasi and helped the police.
26. Admittedly, there is no dispute in regard to age of the prosecutrix and,
therefore, it does not call for any elaborate discussion.
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27. PW-12, Sudhanshu Ahirwar is the dog handler and PW-13 Hari
Shankar Ahirwar is the witness of spot map (Ex.P-7). Dr. Neelam Jain is
PW-15, who collected blood sample of the appellant for DNA examination.
28. As far as PW-12, Sudhanshu Ahirwar, dog handler is concerned, after
having proved his report Ex.P-14, duty report Panchnama of the dog Ex.P-
13 and certificate Ex.P/12, in which it is mentioned that PW-12 Sudhanshu
Ahirwar, attended basic training course of tracker and protection w.e.f.
16.01.2017 to 12.11.2017 as a dog handler at Madhya Pradesh Police
Training School (DOG) Bhopal, proved that dog after smelling the footwear
and clothings of the deceased had straightway gone to the house of the
appellant. It had stopped near a bicycle, standing in front of the house of
the appellant and started barking. When he asked persons standing nearby,
then it was informed that the said house, in front of which bicycle was
standing, is the house of Virendra Adiwasi. In cross-examination, it was
stated that merely single touch of a person to the articles which was lying on
the spot, will not cause any interruption, but when the touch is persistent,
then dog will reach to the concerned house. Thus, evidence of PW-12
Sudhanshu Ahirwar has remained unrebutted.
29. PW-15 is wrongly mentioned for two witnesses, namely, Dr. Neelam
Jain and Uma Shankar, Constable. But, PW-15 Dr. Neelam Jain stated that
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blood sample of appellant Virendra Adiwasi was drawn in front of her for
DNA testing. OPD slip of District Hospital, Sagar is Ex.P-17, which
contains her signatures from ‘A’ to ‘A’ part. Prior to drawing of blood
sample, appellant Virendra had filled identification form. His photo was
affixed on it and it was verified. Consent of the appellant was taken before
drawing his sample. On the consent from, thumb impression of his right
and left thumb were obtained. After taking consent of the accused, his
signatures were also obtained. Thereafter, 2-2 ml of blood was drawn in 2
EDTA tube vial for DNA examination by the Lab Technician, Deepa
Mishra, under her supervision and directions was taken in front of the
Investigating Officer, Inspector Chandan Singh Parihar and witness Ram
Prasad, which was sealed and given to the Constable Barelal. Identification
form is Ex.P-10, on which photo has been identified by this doctor through
her signatures. There is no cross-examination on this witness.
30. It has come on record and admitted that the samples which were
drawn on 10.04.2019 were sent to the Forensic Science Laboratory, Sagar
by the concerned Superintendent of Police Sagar, vide letter No.266/2019,
dated 12.4.2019, Ex.P-25 and proved by PW-23 Inspector Chandan Singh
Parihar.
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31. In DNA report (Ex.P-30), it is clearly mentioned that samples were
received in an intact condition as is evident from Ex.P/30. It is also
mentioned in Ex.P-30 that in terms of the provisions contained in Section
293 Cr.P.C. Assistant Chemical Examiner, FSL Laboratory Madhya Pradesh
Government is exempted from appearing as a witness and the report can be
accepted, but if there is any emergent need, then D.D. Bansal, Scientific
Officer and Assistant Chemical Examiner, FSL Madhya Pradesh
Government or any authorized officer can be called in the Court for
evidence.
32. This DNA report (Ex.P-30) also makes a mention of the automated
and differential extraction process was adopted for carrying out DNA
analysis and, thereafter, DNA report was given as contained in
Ex.P/30. Thus, it is evident that the ground which has been taken by the
learned Senior counsel/amicus curiae that as per Section 293, Cr.P.C., since
Scientific Officer/Chemical Examiner was not examined, therefore, that
report is inadmissible is concerned, judgment of Karandeep Sharma
(supra), makes a clear mention in paragraph 39 as under:-
“39. The first flaw in the prosecution case on the aspect of DNA
profiling is that the expert who conducted the DNA examination
was not examined in evidence and the DNA report was merely
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exhibited in evidence by the Investigating Officer(PW-14) who
undeniably is not connected with the report in any manner. This
Court in the case of Rahul v. State of Delhi, Ministry of Home
Affairs (2023) 1 SCC 83, while dealing with the issue
concerning evidentiary value of DNA report, has held that DNA
profiling reports cannot be admitted in evidence ipso facto by
virtue of Section 293, Cr.P.C and it is necessary for the
prosecution to prove that the techniques of DNA profiling were
reliably applied by the expert. The relevant excerpts from the said
judgment are reproduced hereinbelow for the sake of ready
reference:-
“36. The learned Amicus Curiae has also assailed the
forensic evidence i.e. the report regarding the DNA
profiling dated 18-4-2012 (Ext. P-23/1), giving
incriminating findings. She vehemently submitted
that apart from the fact that the collection of the
samples sent for examination itself was very
doubtful, the said forensic evidence was neither
scientifically nor legally proved and could not have
been used as a circumstance against the appellant-
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accused. The Court finds substance in the said
submissions made by the Amicus Curiae. The DNA
evidence is in the nature of opinion evidence as
envisaged under Section 45 and like any other
opinion evidence, its probative value varies from
case to case.”
33. Thus, it is held that DNA evidence is in the nature of opinion evidence
as envisaged under Section 45 and like any other opinion evidence its
probative value varies from case to case.
34. Thus, the ratio of law is that when the collection and sealing of the
samples sent for examination and the methodology deployed for testing are
not free from suspicion, then examination of the expert or the authorized
person from the Forensic Science Laboratory is must to prove the DNA
report and it cannot be admitted in evidence.
35. When provisions contained in Section 293, Cr.P.C., are taken into
consideration, then Section 293(1) Cr.P.C., itself provides that “Any
document purporting to be a report under the hand of a Government
scientific expert to whom this Section applies, upon any matter or thing duly
submitted to him for examination or analysis and report in the course of any
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proceeding under this Code, may be used as evidence in any inquiry, trial or
other proceeding under this Code.”
36. Sub-Section (2) of Section 293, Cr.P.C., grants a discretion in the
hands of the Court that if it thinks fit, may summon and examine any such
expert as to the subject-matter of his report.
37. Sub-section (4) of Section 293 Cr.P.C., provides that this section
applies to the following Government scientific experts, and then a list of
seven categories is given.
38. Admittedly, in the present case reports Ex.P-29 & Ex.P-30, have been
issued by the competent authority mentioned in Sub-section (4) of Section
293, Cr.P.C. There is no allegation of either tempering with the collection of
requisite samples nor that of mal-preservation, or inappropriate technique
being applied.
39. Various High Courts and Supreme Court had an occasion to deal with
this aspect and in case of Bhagwandas Vs. State of Punjab, 1982 Cr.L.J.
2138 (P&H-DB), it is held that it is not incumbent on the prosecution to
examine any or every concerned official within the office of the chemical
examiner with regard to the safe custody of the sample therein and its failure
to do, does not introduce any infirmity in its case.
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40. In Shyam Sundar Vs. State of Haryana, 2007 Cr.L.J. (NOC) 507
(P&H-DB), it is held that report of FSL is admissible in evidence in view of
the provisions of Section 293, Cr.P.C.
41. Hon’ble Supreme Court in Rajesh Kumar Vs. State Government of
NCT of Delhi, (2008) 4 SCC 493, held that there is no necessity to examine
any witness to prove the excise control laboratory report.
42. In State of Punjab Vs. Nachhatar Singh, 1982 Cr.L.J. 1197, 1201
(P&H-DB), it is held that report of chemical examiner to the effect that
seals on the sample were intact when it was examined by him, is considered
to be a sufficient safeguard against any mischief that could be perpetrated in
the office of the chemical examiner.
43. In Dasu Vs. State of Maharashtra, 1985 Cr.L.J. 1933 (BOM), it is
held that in absence of any request from the accused for summoning the
chemical analyzer and unless he shows that the report is deficient and needs
personal elucidation, the trial Court can admit it in evidence and need not
call the analyzer or examiner.
44. In Phool Kumar Vs. Delhi Administration, AIR 1975 SC 905, it is
held that where report of a fingerprint expert is used as evidence against the
accused, neither the court feeling it necessary to examine him nor the
prosecution or the accused filing any application to summon him, an
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objection cannot be taken at the appellate stage against non-examination of
the expert.
45. In State of Kerala Vs. Arun Velenchary, 2002 Cr.L.J. 2512 (KER-
DB), it is held that Sub-section (2) of Section 293, Cr.P.C. uses the word
“may” and not “shall”. On the facts of each case, the Court has to exercise
the discretion whether the expert has to be examined.
46. Thus, it is evident that law is well settled and that is the ratio of law
laid down by Hon’ble Supreme Court in Karandeep Sharma (supra), that
where there are doubts as to the efficacy of drawing of or preservation of the
sample, then in that case it is mandatory to have evidence of the chemical
examiner or the person so authorized under Section 293, Cr.P.C., before it
can be taken as a piece of evidence.
47. We have carefully gone through the evidence of PW-15 Dr. Neelam
Jain, who had collected the blood sample of the appellant and also the
evidence of the Investigating officer of the case. Besides this, PW-14 Shri
Barelal Chadhar, who had received the blood sample from PW-15 Dr.
Neelam Jain, vide Ex.P-15, and had prepared seizure memo Ex.P-16, that
this witness PW-14 Barelal Chadhar was not subjected to any cross-
examination. Similarly, PW-15 Dr. Neelam Jain too was not subjected to
any cross-examination.
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48. Thus, when appellant failed to raise any doubt as to the collection of
his blood sample or preservation of various articles which were sent for
DNA examination, then in terms of Sub-section (1) of Section 293, Cr.P.C.,
we are of the opinion that without there being any request for examination
of the expert, and without raising any doubt as to the efficacy of collection,
preservation and receipt of samples, so also in regard to the process which
was followed by the concerned expert, who has been given an immunity
from appearing before the court in a routine course, then collection of
samples etc., being not under suspicion, decision of coordinate Bench of this
Court in Prakash Vs. The State of Madhya Prakash (supra), is neither a
binding precedent nor will cover the facts and circumstances of the present
case.
49. Since of the FSL reports Ex.P-29 & Ex.P-30 are available on record
and they besides evidence of PW-2 of last seen corroborated with the
evidence of PW-12 Sudhanshu Ahirwar, Dog Squad Handler, are sufficient
circumstances, inasmuch as, conviction is not based only on the FSL reports
Ex.P-29 & Ex.P-30, but there is corroborative evidence of last seen and the
dog handler, therefore, the aforesaid question is answered accordingly.
50. PW-2 Grandmother of the victim is the witness of last seen. There are
no material contradictions in the evidence of this witness PW-2.
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51. PW-3 is the father of the prosecutrix. He has proved the age of the
prosecutrix and also the fact that appellant Virendra had confessed at ‘Man
Khandan Mata Mandir’, that he committed a blunder. He had given a
confessional statement that he had raped the girl and then strangulated her.
52. PW-5 Madan is the person who stated that he had gone to the forest to
pick wood when he had seen a girl lying dead near Paran Nala. He had
approached Upsarpanch Vrindawan and had informed him and Maganlal
about dead body lying in the forest.
53. PW-6, Jolly @ Phool Singh, corroborated the statements of PW-2
grandmother of the victim that she had informed him that victim and she
were returning from village Aapchand, when appellant Virendra had taken
the victim on bicycle, leaving behind PW-2 to come on foot.
54. PW-8 Dheeraj Adiwasi stated that both Virendra and Ram Prasad are
known to him so also the deceased. Deceased was daughter of Ram Prasad.
At the time of the incident, he was in his fields. He had seen Virendra
taking victim towards the jungle.
55. PW-9 Uttam Adiwasi and PW-10 Vrindawan are hearsay witnesses.
56. PW-11 Hargovind Prajapati, had carried out photography and
videography on 8.4.2019 at the instance of the police. This witness stated
that PW-12 Sudhanshu Ahirwar, dog handler was present along with the
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FSL team. Dead body of deceased was smelled by the dog and then the dog
through the jungle had reached the house of appellant Virendra at village
Aapchand. He had prepared a video and had also taken certain
photographs. He had prepared videos DVD. DVD does not contain any
deletion etc. He proved certificate (Ex.P/9) given under Section 65-B of the
Evidence Act, containing his signatures and the photographs contained in
Ex.P-10.
57. PW-13 Harishankar Ahirwar is the witness of seizure of slippers and
torn cloths of the victim.
58. PW-15, Umashankar, Constable No.1497, had taken dead body of the
victim to the District Hospital, Sagar, where panel of doctors had conducted
postmortem.
59. PW-17 Rahul Ahirwar is the person who prepared spot map.
60. PW-18 Gajendra Singh Gond is the witness of seizure of DVD and
photographs from the spot and in regard to the movement of the dog.
61. PW-19 Krishna Yadav is the witness of memorandum (Ex.P/19),
arrest memo (Ex.P/20) and memo of seizure of cycle and shirt of Virendra
(Ex.P/21). He has supported the prosecution case.
62. PW-20 Head Constable Babu Singh supported the seizure at the
instance of Constable Umashankar.
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63. PW-22 Dr. Jitendra Saraf conducted postmortem on the body of the
deceased and gave an opinion that cause of death is not clear, but there were
signs of casual assault. Vaginal slides were taken, preserved and seized for
DNA examination. Death had occurred within 24-48 hours. His report is
Ex.P-18. No cross-examination was conducted on this witness too by the
learned counsel for the appellant.
64. PW-23 Inspector Chandan Singh Ahirwar, Police Inspector, is the
person who carried out the investigation. He was given a specific
suggestion in paragraph 12 that Yadav family had made the dog team to
smell cloths of the appellant, therefore, dog had reached to the house of the
appellant, but he denied this suggestion. Even otherwise, this suggestion
appears to be weak. Admittedly, dog squad had gone to the scene of crime
on 08.04.2019 as is proved by PW-12 Sudhanshu Ahirwar, dog handler,
whereas arrest of the appellant was made on 09.04.2019 from Nayakheda
Aapchand Chouraha in presence of witnesses Ramsewak and Krishna.
Therefore, this suggestion will not help the defence.
65. Appellant Virendra in his 313 Cr.P.C. statements, except for saying
that he is innocent, has not taken any other plea of alibi or shown his
absence from the scene of crime. His presence is proved by PW-2
Grandmother of the victim.
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66. Thus, when all the facts and circumstances of the case especially
evidence of PW-2 grandmother of the victim, PW-5 Madan, PW-12
Sudhanshu Ahirwar, dog handler, PW/15 Dr. Neelam Jain and Investigating
officer of the case is taken into consideration, then there is evidence of last
seen given by PW-2, evidence of PW-12 that dog after smelling cloths of
the victim, had directly gone to the house of appellant, coupled with the fact
that there is a DNA report which was promptly sampled and sent for
examination, chain of all the circumstances is complete to point out towards
the guilt of the appellant and nobody else. Therefore, as far as conviction is
concerned, that is required to be upheld and is hereby upheld.
67. As far sentence is concerned, there are two circumstances which are to
be taken into consideration while drawing a balance sheet of aggravating
and mitigating circumstances, mainly, involvement of the appellant in a case
of violation of privacy and murder in relation to a senior citizen in case
Crime No.105/2019, originating from the same police station and young age
of the appellant.
68. Though it is stated by Shri Nitin Gupta, learned Public Prosecutor for
the State that in view of second conviction, appellant appears to be a person
of perverted mind and there are no chance of his rehabilitation, therefore,
death penalty be maintained. But, there are two intervening factors which
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are required to be taken into consideration as submitted by learned amicus
curiae Shri Aditya Adhikari. Firstly, criminal appeal No.145 of 2022
originating from the said judgment is still pending. Secondly, the fact that
there may be interpolation in DNA report etc., as all the samples in the said
case, though prior to the incident in the present case, were drawn
subsequently and there is possibility of intermixing, which is required to be
dealt with by the concerned appellate Court and, therefore, we will be
committing a grave error in basing our findings on the basis of judgment of
conviction recorded by the trial court, especially, when appeal is pending.
69. Therefore, taking into consideration the judgment of Supreme Court in
Ramesh K. Naika Vs. Registrar General High Court of Karnataka, 2025
SCC Online 575, and Arvind Singh Vs. State of Maharashtra, (2021) 11
SCC 1, we are of the view that there are no reports of proven misbehaviour
or erratic behaviour of the appellant in the prison. It is also true that
appellant was aged about 24 years. Prior to that, he had no criminal
antecedents. We are conscious of the fact that in Ramesh Naika (supra),
young age or criminal antecedents have been denied to be treated as
mitigating circumstances, but only thing which is required to be seen is
possibility of rehabilitation and whether the present case is one which will
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fall in the category of ‘rarest of the rare’ cases to shake the collective
conscious of the community.
70. Similar ratio of law is laid down by Hon’ble the Supreme Court in the
case of Ramesh A. Naika (supra) where Hon’ble Supreme has summarized
the tables of judgment where sentence without remission for the remainder
of the convict’s life was granted starting from Swamy Shraddananda
(supra), Sebastian Vs. State of Kerala, (2010) 1 SCC 58 to Deen Dayal
Tiwari Vs. State of U.P., 2025 SCC Online SC 237 and noted cases
wherein life sentence has been imposed till the end of the convict’s natural
life subject to remission starting from Mulla Vs. State of U.P., (2010) 3
SCC 508 to Arvind Singh Vs. State of Maharashtra, (2021) 11 SCC 1.
Hon’ble Supreme Court directed to take of the hangman’s noose from the
appellant’s neck and instead directed that he remains in prison till the end of
his days given by God Almighty.
71. However, looking to the fact that facts of the case of Arvind Singh
(supra) are similar to that of the present case, we allow the present appeal in
part and while maintaining the conviction, substitute the death sentence
imposed by learned trial Court to appellant-Virendra Adiwasi into the life
imprisonment. It is directed that the life means till the end of life with
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further observations and directions that there shall not be any remission till
the accused completes 25 years of imprisonment.
72. Accordingly, criminal appeal filed by the appellant is allowed in part
and the criminal reference is answered in the following manner: –
(i) The conviction of the appellant of offences under Sections
302, 363, 366A, 376(3) read with Section 376(2)(f) of IPC
and Section 5(n) read with Section 6 of the Protection of
Children from Sexual Offences Act, 2012 is upheld and the
sentences awarded to him are confirmed, except the death
sentence for the offence under Section 302 IPC.
(ii) The death sentence awarded to the appellant for offence under
Section 302 IPC is commuted into that of imprisonment for
life with a condition that no remission will be admissible to
him till he completes 25 years of imprisonment.
(iii) The other terms of sentences awarded to the appellant,
including the amount of fine and default stipulations, are also
confirmed.
73. In above terms, criminal appeal is allowed in part and the criminal
reference is answered accordingly.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
pp
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