Supreme Court of India
Abdul Nassar vs The State Of Kerala on 7 January, 2025
Author: Vikram Nath
Bench: Vikram Nath, Sanjay Karol
2025 INSC 35
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 1122-1123 OF 2018
ABDUL NASSAR ..APPELLANT(S)
VERSUS
STATE OF KERALA & ANR. ..RESPONDENT(S)
JUDGMENT
Mehta, J.
1. These appeals assail the judgment and order dated 28th
February, 2018 passed by the Division Bench of the High Court of
Kerala at Ernakulam in Criminal Appeal No. 1452 of 2013 and
Death Sentence Reference No. 3 of 20131. The Death Sentence
Reference and the Criminal Appeal arose out of the judgment dated
Signature Not Verified
Digitally signed by
NEETU KHAJURIA
Date: 2025.01.10
16:59:10 IST
Reason:
1 Hereinafter, being referred to as D.S.R. No. 3 of 2013
1
31st July 2013 passed by the Court of Sessions Judge, Manjeri2 in
Sessions Case No. 487 of 2012.
2. By the aforesaid judgment, the learned trial Court found the
appellant (the sole accused) guilty of the offences punishable
under Sections 302 and Section 376 of the Indian Penal Code,
18603 and sentenced him as follows:
(i). Under Section 302 IPC: Death sentence (subject to the
confirmation by the High Court)
(ii). Under Section 376 IPC: Rigorous Imprisonment for 7 years
and a fine of Rs. 1,000/- (in default to undergo Rigorous
Imprisonment for two months). [This imprisonment was allowed to
be set off under Section 428 of the Code of Criminal Procedure,
19734]
3. Being aggrieved by his conviction and sentence awarded by
the learned trial Court, the accused preferred Criminal Appeal No.
1452 of 2013 before the High Court. Since the trial Court awarded
capital punishment to the accused appellant, the matter was
referred to the High Court under Section 366 CrPC for
confirmation of the death sentence vide D.S.R. No. 3 of 2013. Both
2 Hereinafter being referred to as ‘trial Court’
3 Hereinafter being referred to as ‘IPC’
4 Hereinafter being referred to as ‘CrPC’
2
D.S.R. No. 3 of 2013 and Criminal Appeal No. 1452 of 2013 were
decided by the High Court vide common impugned judgment dated
28th February 2018 whereby, the Criminal Appeal was dismissed,
and the Death Sentence Reference was allowed confirming the
death sentence awarded to the accused. Being aggrieved, the
accused appellant has filed the present appeals by way of special
leave.
4. This Court vide order dated 4th September, 2018, stayed the
execution of death sentence awarded to the accused appellant.
5. During the pendency of these appeals, the appellant passed
away on 16th January 2024. An application was submitted by the
legal heirs of the appellant before this Court under Section 394(2)
CrPC for the continuation of the present appeals to wash off the
stigma attached to the accused appellant and his family which was
allowed vide order dated 1st February, 2024.
6. Brief facts relevant and essential for the disposal of these
appeals are as follows: –
6.1 The prosecution story in brief is that on 4th April, 2012, at
about 6:30 am, the child victim aged about 9 years was proceeding
from her house to the Madrassa situated at Ponnamkallu in
Amarambalam Village. On the way to the Madrassa, she went to
3
the house of the accused which was situated on the side of thepanchayat road at Ponnamkallu, in search of her friend who is the
daughter of the accused so as to go to the Madrassa together.
6.2 On seeing the child victim all alone, the accused who was also
alone in the house, committed rape upon her in a room in his
house at around 6:45 am, and after that, he strangled the child
victim with a shawl and smothered her with his hands which lead
to the death of the victim.
6.3 It is the case of the prosecution that the accused, with the
intention to destroy evidence, concealed the dead body of the
victim beneath a cot inside the bedroom in the said house.
Thereafter, the accused shifted the victim’s dead body to the
bathroom attached to the said house. He also attempted to dispose
of the dead body in the septic tank situated at the north-eastern
corner of the house as the stones from under the slab of the septic
tank were found removed.
6.4 When the victim could not be found anywhere despite frantic
efforts to trace her out, a written complaint5 came to be submitted
by complainant-Salim (PW-1) at the Nilambur Police Station on 4th
April, 2012 at 7:00 pm on the basis of which an FIR No. 308 of
5 Exhibit P-1
4
20126 came to be registered at the Nilambur Police Station under
Section 57 of Kerala Police Act, 2011 and the investigation was
commenced.
6.5 The dead body of the girl was found at around 7:30 pm on
4th April, 2012, in the bathroom adjacent to the house of the
accused appellant and thereupon, the offence punishable under
Section 57 of the Kerala Police Act, 2011 was altered to Section
302 IPC vide Exhibit P-9. Further, on the next day, offences
punishable under Sections 376 and 201 IPC and Section 23 of the
Juvenile Justice (Care and Protection) Act, 20007 were also added
to FIR No. 308 of 20128 vide Exhibit P-20, and the investigation
continued. The accused appellant was arrested on 6th April, 2012.
6.6 The Investigating Officer (PW-24) forwarded a report9
regarding the addition of the name and address of the accused in
the aforesaid FIR. Material forensic evidence was collected from the
crime scene and was subjected to scientific examination.
Incriminating recoveries were effected in furtherance of the
disclosure statements made by the appellant. After the conclusion
of the investigation, a charge sheet came to be filed against the
6 Exhibit P-11
7 Hereinafter being referred to as ‘JJ Act’
8 Supra, Note 6
9 Exhibit P-21
5
accused for the offences punishable under Sections 376, 302, and
201 IPC and Section 23 of the JJ Act in the Court of the concerned
Jurisdictional Magistrate.
6.7 The case being exclusively Sessions triable was committed to
the Court of Sessions Judge, Manjeri (‘trial Court’) where charges
were framed against the accused for the above offences. The
accused pleaded not guilty and claimed trial.
7. The prosecution examined as many as 24 witnesses and
exhibited 25 documents and 17 material objects to prove its case.
For the sake of convenience, the details of the prosecution
witnesses, exhibits and material objects are given below: –
Prosecution Witnesses: –
PW-1 Saleem
PW-2 Nazarudheen
PW-3 Abdul Azeez
PW-4 Unnikrishnan
PW-5 Vijayachandran Kutty
PW-6 Harinarayanan
PW-7 Ibrahim Kutty
PW-8 Shamsudheen
PW-9 Suhara
PW-10 Ibrahim Darimi
PW-11 Ramakrishnan
PW-12 Unnikrishnan
PW-13 Musthafa
6
PW-14 Subramaniam
PW-15 Sunil Pulikkal
PW-16 Nisha
PW-17 Ratheesh
PW-18 Abraham
PW-19 Dr. Sonu
PW-20 Dr. Vinod Kumar
PW-21 Dr. R. Sreekumar
PW-22 Dr. P.A. Sheeju
PW-23 Pradeep Kumar
PW-24 A.P. Chandran
Exhibits:-
Ex. P-1 First Information Statement
Ex. P-2 Seizure Mahazar
Ex. P-3 Admission abstract and certificate of
the deceased, issued by the
Headmaster, Government LP School,
Kavalamukkatta
Ex. P-4 Property certificate issued by Village
Officer, Amarambalam
Ex. P-5 Scene Plan
Ex. P-6 Seizure Mahazar
Ex. P-7 Seizure Mahazar
Ex. P-8 Septic Tank Report issued by Asst.
Engineer, PWD Building Section,
Nilambur
Ex. P-9 Report incorporating the offence
under S. 302, Indian Penal Code,
1860 (IPC)
Ex. P-10 Seizure Mahazar
Ex. P-11 First Information Report
Ex. P-12 Potency Certificate7
Ex. P-13 Examination report on semen stains,
blood, and hair
Ex. P-14 DNA Report
Ex. P-15 Post-Mortem report
Ex. P-16 Seizure Mahazar
Ex. P-17 Seizure Mahazar
Ex. P-18 Seizure Mahazar
Ex. P-19 Inquest Report
Ex. P-20 Report submitted in court
incorporating offences under S. 376
and 201 of the IPC, and the offence
under S. 23 of the Juvenile Justice
(Care and Protection) Act, 2015
Ex. P-21 Report submitted in court adding
name of the accused to the FIR.
Ex. P-22 List of property sent to Magistrate,
filed by PW24.
Ex. P-23 Extract of confessional statement of
the accused.
Ex. P-24 Chemical analysis certificate.
Ex. P-25 Copy of request for collection of nail
clippings, hair, and blood of the
accused.
Material Objects:-
MO1 Chapels
MO2 Chapels
MO3 Writing pad
MO4 Pen
MO5 Plastic cover
MO6 Plastic carry bag
MO7 Midi skirt
MO8 Petticoat
MO9 Midi top
8
MO10 Piece of shawl
MO11 Underwear
MO12 Piece of shawl
MO13 Piece of shawl
MO14 Dothi
MO15 Full sleeves shirt
MO16 Passport of the accused.
MO17 Election Identity Card of the accused
8. The accused upon being questioned under Section 313 CrPC
denied the prosecution allegations but chose not to lead any
evidence in defence. The trial Court proceeded to convict and
sentence the accused in the above terms10 vide judgment dated
31st July 2013.
9. Being aggrieved by the conviction and sentence awarded by
the trial Court, the accused appellant preferred Criminal Appeal
No. 1452 of 2013 under Section 374(2) CrPC before the High Court
of Kerala at Ernakulam. Since, the trial Court awarded death
sentence to the accused for the offence punishable under Section
302 IPC, the matter was referred to the High Court for confirmation
of the death sentence under Section 366 CrPC vide D.S.R. No. 3 of
2013.
10 Refer, Para 2
9
10. Criminal Appeal No. 1452 of 2013 and D.S.R. No. 3 of 2013
were decided vide common judgment dated 28th February 2018,
whereby the Division Bench of the High Court dismissed the
Criminal Appeal and allowed the Death Sentence Reference
confirming the death sentence awarded to the accused appellant.
The said judgment is assailed in the present appeals.
Submissions on behalf of the appellant:
11. Shri Trideep Pais, learned senior counsel representing the
accused appellant advanced the following pertinent submissions
to assail the impugned judgment: –
11.1 That the prosecution has not been able to establish that the
body of the victim girl was dumped in the bathroom by the
accused. The bathroom where the body was found was located
outside the house of the accused and was open and easily
accessible to all and sundry. The accused was not in the house at
the time of the incident and thus, the possibility of someone else
having committed the crime cannot be ruled out.
11.2 That the body of the deceased was discovered at around
7:30 pm and the police officials arrived at the scene for the first
time at around 9:00 pm i.e. after a delay of 1.5 hours. Admittedly,
local people arrived at the crime scene during this time and thus,
10
the possibility of the public tampering with the body of thedeceased and disturbing and contaminating the crime scene
cannot be ruled out which brings the integrity of samples collected
during the investigation under a shadow of doubt.
11.3 That the scene of occurrence and body of the deceased
remained unsealed and unguarded for around 14 hours until 9:00
am of 5th April, 2012, i.e., the time when inquest was prepared.
This renders every subsequent seizure of samples or evidence
collected from the house of the accused or the body of the deceased
unreliable with a strong possibility of degradation and
contamination of body and so also the tampering of evidence.
11.4 That as per the statement of AP Chandran, Investigating
Officer (PW-24), the underwear was found on the body of the
deceased while as per the Inquest Report11, the underwear (MO 11)
was found in the kitchen. Further, none of the witnesses to the
inquest report were examined and also the contents of the inquest
report have not been proved by the Investigating Officer (PW-24) in
his deposition.
11.5 That the blood stains were only found in the north-west room
which is admittedly not the room where the crime was committed
11 Exhibit P-19
11
and there is no tangible evidence on record to explain how the dead
body was taken unnoticed from the crime scene to the bathroom
situated outside the house of the accused.
11.6 That no seizure memo was prepared for the collection of the
clothes of the deceased i.e. midi skirt, petticoat, top and underwear
seized by the Investigating Officer (PW-24) and even the inquest
report12 does not mention that these items were sealed.
11.7 That the chain of custody of all articles seized by the police
has not been established and there has been a lapse in sending
the material articles for forensic examination. Also, the manner of
storage of the biological samples has been improper which is
contrary to the mandate laid down by this Court in Rahul v. State
(NCT of Delhi)13 and Prakash Nishad @ Kewat Zinak Nishad v.
State of Maharashtra14.
11.8 That the findings of the DNA Report15 dated 11th January,
2024 and FSL Report16 of seminal stains, blood and hair dated 4th
January, 2024 cannot be relied upon due to the absence of
corroborative evidence of seizure and reasons behind the findings
of the experts. Thus, these reports do not meet the standards of
12 Exhibit P-19
13 (2023) 1 SCC 83
14 2023 SCC OnLine SC 666
15 Exhibit P-14
16 Exhibit P-13
12
expert evidence enumerated under Section 45 of the Indian
Evidence Act, 1872.
11.9 That it is a settled position of law that the accused must be
given an opportunity to explain all evidence against him during the
recording of his statement under Section 313 CrPC which has not
been complied with in the instant case inasmuch as the findings
of DNA examination and serological examination were not put to
the accused and thus, the same cannot be relied upon in support
of the prosecution case.
11.10 That the disclosure statement17 made by the accused cannot
be relied upon as the exclusive knowledge or access of the accused
to the terrace from which the alleged recovery was made is not
shown by the prosecution and the recovered articles were not
identified in TIP18 or adequately link with the deceased.
11.11 That the material witness, Amina Thana who had last seen
the deceased going towards the Madrassa, and other witnesses
namely, Muhammad Shan, Kunhiappa, and Keshavan who were
part of the search party were not examined by the prosecution.
11.12 That the testimony of the prosecution witnesses,
Nazarudheen (PW-2), Shamsudheen (PW-8) and Unnikrishnan
17 Exhibit P-23
18 Test Identification Parade
13
(PW-12) cannot be relied upon. Nazarudheen (PW-2) stated that
he went to the house of the accused on four occasions, and it was
during his fourth visit, he found the dead body of the victim in the
bathroom. It was contended that PW-2 had even searched the
bathroom on his third visit but did not find anything and thus
apparently, the recovery of the dead body is a planted one.
11.13 That there is no eyewitness to the alleged incident and the
case of the prosecution hinges entirely on circumstantial evidence.
The prosecution has failed to prove the complete chain of
incriminating circumstances pointing towards the guilt of the
accused. In this regard, learned senior counsel relied upon the
judgments of this Court in Hanumant v. State of Madhya
Pradesh19; Sharad Birdhichand Sarda v. State of
Maharashtra20 to submit that it is settled law that in a case of
circumstantial evidence, the chain of circumstances must be so
complete that it is consistent only with the guilt of accused and
every other possible hypothesis is excluded.
11.14 That the instant case does not fall within the purview of the
rarest of rare cases. The High Court affirmed the death sentence
awarded to the accused without adverting to the relevant
19 (1952) 2 SCC 71
20 (1984) 4 SCC 116
14
mitigating and aggravating circumstances pertaining to the
accused.
He thus implored the Court to accept the appeals and set
aside the impugned judgments.
Submissions on behalf of Respondent-State: –
12. Per contra, Shri R. Basant, learned senior counsel
representing the State, vehemently and fervently opposed the
submissions advanced by the learned senior counsel for the
accused appellant and submitted that every reasonable hypothesis
points towards the guilt of the accused. He urged that two Courts,
i.e., the trial Court as well as the High Court, have recorded
concurrent findings of facts, convicting the accused and hence,
this Court in the exercise of its jurisdiction under Article 136 of
the Constitution of India should be slow to interfere with such
concurrent findings of facts. He advanced the following
submissions while supporting the impugned judgment and
imploring the Court to dismiss the appeals: –
12.1 That the blood stains were found inside the house of the
accused, beneath the cot and on the cot, and the DNA Report21
establishing that the blood stains found were that of the deceased.
21 Exhibit P-14
15
12.2 That the seminal stains on the vaginal swab and smear of the
deceased collected by Forensic Surgeon (PW22) also matched with
the DNA of the accused as per the DNA Report (Exhibit P-14).
12.3 That the Inquest Report (Exhibit P-19) is an admissible piece
of evidence since the same was prepared by the Investigation
Officer (PW-24) while discharging his official duties under Section
174 CrPC. In this regard, the learned counsel placed reliance on
Rameshwar Dayal and Others v. State of U.P.22 and George
and Others v. State of Kerala and Another23
12.4 That no explanation has been given by the accused for
recovery of the writing pad (MO3), pen (MO4), plastic cover (MO5),
plastic carry bag (MO6) and the underwear of the victim (MO11)
from the roof of his own house.
12.5 That the learned counsel for the appellant contended that
Nazarudheen (PW2) went to the house of the accused four times
on the date of the incident i.e. 4th April, 2012. The body of the
deceased was found by him on the fourth visit, and PW2 had even
searched the bathroom on his third visit but did not find anything.
However, he submitted that it is clear from the evidence of
Nazarudheen (PW2) that he had a grave suspicion against the
22 (1978) 2 SCC 518
23 (1998) 4 SCC 605
16
accused, and he informed this fact to Shamsudheen (PW8) and
Unnikrishnan (PW12). The accused became apprehensive after the
third visit of Nazarudheen (PW2) and thus, he told PW2 that he did
not have the key to his house. In the meantime, he shifted the body
from the bedroom to the bathroom in an attempt to hide the dead
body in the septic tank.
12.6 That the instant case falls within the rarest of rare cases as
the accused was in a relationship of trust, belief, and confidence
with the deceased, being the father of a friend of the deceased and
there are no extenuating circumstances which can be said to
mitigate the enormity of the crime.
On these submissions, Mr. Basant implored the Court to
dismiss the appeals and affirm the impugned judgement.
Discussion and Conclusion: –
13. We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the
judgments of the trial Court and High Court as well as the evidence
available on record.
14. Indisputably, the prosecution case rests on circumstantial
evidence. The law with regard to a case based purely on
circumstantial evidence has very well been crystalized in the
17
judgment of this Court in the case of Sharad Birdhichand
Sarda(supra), wherein this Court held thus:
“152. Before discussing the cases relied upon by the High Court we
would like to cite a few decisions on the nature, character and
essential proof required in a criminal case which rests on
circumstantial evidence alone. The most fundamental and basic
decision of this Court is Hanumant v. State of Madhya Pradesh
[(1952) 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091: 1953 Cri LJ
129]. This case has been uniformly followed and applied by this
Court in a large number of later decisions up to date, for instance,
the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3
SCC 198: 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra
[(1972) 4 SCC 625: AIR 1972 SC 656]. It may be useful to extract
what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC
71: AIR 1952 SC 343: 1952 SCR 1091: 1953 Cri LJ 129]:
“It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is
to be drawn should in the first instance be fully
established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a
conclusive nature and tendency, and they should be
such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with
the innocence of the accused and it must be such as
to show that within all human probability the act
must have been done by the accused.”
153. A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can be
said to be fully established:
(1) The circumstances from which the conclusion of guilt is to be
drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal distinction
between “may be proved” and “must be or should be proved” as was
held by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ
18
1783] where the observations were made: [SCC para 19, p. 807: SCC
(Cri) p. 1047]
“Certainly, it is a primary principle that the accused must
be and not merely may be guilty before a court can convict
and the mental distance between ‘may be’ and ‘must be’ is
long and divides vague conjectures from sure
conclusions.”
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should not
be explainable on any other hypothesis except that the accused is
guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the one to
be proved, and
(5) there must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence
of the accused and must show that in all human probability the act
must have been done by the accused.
154. These five golden principles, if we may say so, constitute the
panchsheel of the proof of a case based on circumstantial evidence.”
15. In the light of these guiding principles, we will have to
examine the facts of the present case.
16. Before delving into the discussion with respect to the
submission regarding the breach in the link evidence on which the
entire focus was laid by the learned senior counsel for the
appellant, we would like to discuss the other important pieces of
evidence on which the trial Court as well as the High Court relied
upon so as to record and uphold the conviction recorded against
the accused appellant.
19
17. The High Court primarily relied upon the deposition of
maternal uncle of the deceased child namely, Saleem(PW-1),
another maternal uncle of the deceased child namely,
Nazarudheen (PW-2), mother of the deceased, Suhara (PW-9), and
the Madrassa teacher, Ibrahim Darimi (PW-10). The summary of
the evidence of these witnesses can be extracted from paragraphs
8 to 11 of the impugned judgment rendered by the High Court
which is reproduced hereinbelow for the sake of convenience:-
“8. PW1 is the uncle (mother’s brother) of the deceased. He gave
Fl statement regarding the fact that the girl was missing from
their house. Ext.P1 is the FI statement given at 7.00 p.m. on
4/4/2012. In the statement, he has stated that she had gone
to the madrassa at about 7 am on 4/4/2012. Since she did not
come back by about 10 am, he had gone and enquired at the
Madrassa, and he was told that she had not reached there.
When enquired with the people in the locality, they told that she
was seen within 100 meters of the madrassa. They went and
checked up in the locality and the house of relatives where she
would normally go. Since no information was received, a
complaint was filed.
9. PW9 is the mother of the deceased child., She deposed that
the victim was studying in the 3rd standard in Government L.P.
School at Kavalamukkatta in 2012. The birth certificate had
been produced by the Headmaster of the School PW5 and
marked as Ext.P3. In Ext.P3, her date of birth was shown as
25/8/2002.
10. PW10, the teacher in the madrassa deposed that she was
studying in the 3rd standard and normally she comes at 7.00
a.m. and the class will be over by 9.00 a.m. On 4/4/2012, there
was an examination, but she did not come.
11. PW2 is another uncle (mother’s brother), of the deceased.
He deposed that while conducting search for the minor girl, he
got information from a lady by name Amina that she saw her
granddaughter and the victim going together in the direction of
madrassa. When he enquired in the madrassa, he was informed
20
that she did not reach there. The house of the accused is very
near to the madrassa. PW2 conducted a search near the house
of the accused also. The house of the accused was found locked.
During a second search, PW2 again reached near the house of
the accused by around 4.00 p.m. Even at that time, the house
was found locked. By about 6.45 p.m., he along with certain
other persons reached near the house of the accused. The
accused was found sitting on the veranda. When they asked the
accused about the girl, he told them that he also went in search
for her, and he reached the house only at that time PW2 also
searched the shed and the bathroom of the said house. He
asked the accused to open the house in order to conduct a
search. Accused told him that the key was with his wife and
that he would go and bring it. PW2 therefore went to search in
the pond which was situated near the house of the accused. He
again went near the madrassa where he met a few other persons
including PW8. However, PW2 had some suspicion regarding
the accused which he communicated to them. They therefore
came to the house of the accused. They found the house of the
accused locked. PW12 had a torch with him. He went to the
bathroom and found a heap of clothes. He called others. PW8
entered the bathroom and removed the clothes and found the
dead body of the girl lying beneath the clothes. They shouted
for the people in the locality. Many people gathered and the
police also had come, PW8 and PW12 who were also along with
PW2 had supported the above version.”
18. Neither there is any doubt, nor any argument was raised by
the learned counsel for the appellant that any of these witnesses
bore an animus against the accused so as to influence them for
deposing falsely against the accused. All these witnesses are either
related to the victim or were residents of the neighbourhood who
could not have entertained any motive for falsely implicating the
accused and that too, for such a heinous offence. The evidence of
these witnesses portrays the following sequence of the events: –
21
18.1 The child victim had proceeded from the house for going to
the Madrassa at 6:30 am on 4th April, 2012. She did not reach the
Madrasa on which a search was started.
18.2 Since the last location of the child victim was found near the
house of the accused, Nazarudheen (PW-2) [the maternal uncle of
the deceased] conducted the search near his house which was
found locked.
18.3 The search proceedings continued and Nazarudheen (PW-2)
again reached near the house of the accused at around 4:00 pm.
Even at that time, the house of the accused was locked.
18.4 At around 6:45 pm, Nazarudheen (PW-2) accompanied with
certain other persons reached near the house of the accused and
the accused was found sitting in the veranda of the house.
18.5 On inquiry being made from the accused about the girl, he
replied that he had also gone for search of the child and had
reached back to his house only at that time.
18.6 Nazarudheen (PW-2) also searched the shed and the
bathroom of the house of the accused. He asked the accused to
open the house in order to conduct a search. The accused told
him that the key was with his wife, and he would go to fetch it.
22
18.7 Nazarudheen (PW-2) went to search in the pond which wassituated near the house of the accused. He again went near the
Madrassa where he met few other members of the search party
including Shamsudheen (PW-8).
18.8 The conduct of the accused raised suspicion upon which
Nazarudheen (PW-2) along with the other members of the search
party [Shamsudheen(PW-8) and Unnikrishnan(PW-12)] came back
to the house of the accused which was still locked.
18.9 Unnikrishnan (PW-12) had a torch with him. He lighted the
torch and went to the bathroom and in illumination thereof, he
found a heap of clothes. He called the other members of the search
party. Shamsudheen (PW-8) entered the bathroom and removed
the clothes and found the dead body of the child victim lying
beneath the clothes.
18.10 A hue and cry was raised, and many people gathered there.
The parents of the deceased child were also called.
18.11 The people of the locality caught hold of the accused and he
was taken to the hospital where certain injuries were noted on his
body. Shamsudheen (PW-8) and Unnikrishnan (PW-12) also fully
supported the version of Nazarudheen (PW-2) in their depositions.
23
18.12 The dead body of the deceased child was subjected to
postmortem at the hands of Dr. P.A. Sheeju (PW-22) who took note
of a total of 37 ante-mortem injuries in the postmortem report24.
The doctor opined that the victim died due to manual compressive
and ligature constrictive strangulation. The injuries on the body
and external genitalia were suggestive of forcible vaginal
penetrative sex.
19. A holistic view of the evidence of Nazarudheen (PW-2),
Shamsudheen (PW-8) and Unnikrishnan (PW-12) would show that
their initial attempts to search the house of the accused did not
succeed because the same was found to be locked. At that time,
these witnesses had also checked inside the bathroom which is
just adjacent to the house of the accused. The accused has not
denied that this bathroom was a part and parcel of his property.
20. When the initial search of the bathroom was taken, nothing
was seen therein. Immediately thereafter, the accused posed to
the search party that the key to the lock of his house was with his
wife. There was an intervening gap in these two events. After some
interregnum, when the witnesses Nazarudheen (PW-2),
Shamsudheen (PW-8) and Unnikrishnan (PW-12) went into the
24 Exhibit P-15
24
bathroom of the accused, they found the dead body of the child
lying there. It shows that when the witnesses kept on persevering
to search the house of the accused, he tried to parry their attempts.
Taking advantage of the gap wherein the witnesses had gone to the
Madrassa, he shifted the dead body from inside of the house to the
bathroom and that is why the dead body was found lying in the
bathroom on second search being made.
21. The Investigating Officer (PW-24) apprehended the accused
and arrested him. At the time of arrest, the accused was found
having injuries which appear to have been caused by the local
people before his arrest.
22. The Investigating Officer (PW-24) interrogated the accused
and recorded his disclosure statement25 and acting in furtherance
thereof, the school bag containing the writing pad and footwear
etc. of the victim were recovered. These articles were identified by
Suhara(PW-9), the mother of deceased.
23. The summary of the scientific evidence and the carrying of
the samples by the police officials for forensic examination are
contained in paragraph 13 of the impugned judgment rendered by
25 Exhibit P-23
25
the High Court and the same is being reproduced hereinbelow for
the sake of ready reference:-
“13. The investigating officer had also taken steps for
conducting scientific evidence by sending about 16 sealed
packets to the Forensic Science Laboratory, PW20 had
conducted the examination of seminal stain on item Nos.1 to 5,
12 and 13(a) and the same was detected in all those items. The
items were a midi skirt M07, a dhoti MO14, a towel and vaginal
swab. Blood was also detected on the midi skirt, petticoat,
dhoti, a full sleeve shirt, cotton gauze etc. The blood was found
to be of human origin. Further, nail cuttings were also
examined by PW20. But no foreign tissues were detected.
Various other items were sent by PW20 for DNA analysis. Pw21
has conducted a DNA analysis. DNA typing showed that the
seminal stains in item Nos. l and 13(a) belonged to the accused.
Item No.1 is the midi skirt and item No. 13(a) is the vaginal
swab. Item No.16 was the blood sample taken from the accused.
It is further reported that the DNA typing showed that the blood
stains in items Nos, 5 and 6 and the cells on the nail cuttings
in item Nos.17(a) and 17(b) belonged to the accused. Item No.5
is the reddish brown coloured torn single dhoti and item No.6
is the green coloured torn and soiled full sleeve shirt with self-
lines. Further DNA typing shows that item Nos.1, 7, 8 and 12
and vaginal cells in item No:13(a) belonged to the deceased.
Item No.7 is the blood stain collected in cotton gauze from the
floor beneath the cot and item No.8 is the blood stain collected
in the cotton gauze from the cot. Ext.P14 is the report prepared
by PW21.”
24. Though learned counsel for the appellant has vehemently and
fervently criticised the link evidence, but after going through the
testimony of the Investigating Officer (PW-24), DNA expert (PW-4)
Constable Nisha (PW-16) and on an overall appreciation of the
evidence of the witnesses mentioned above, we find that the
prosecution has given convincing link evidence to establish the
safe keeping of the samples right from the time of the seizure till
26
receipt at the forensic laboratory. The accused himself has not
claimed that after his arrest, the Investigating Officer (PW-24) tried
to collect his sample of the semen. Thus, there was no possibility
that the semen containing the DNA of the accused could have been
planted on the body of the deceased.
25. The following circumstances stand firmly established from a
threadbare analysis of the evidence available on record, pointing
towards the guilt of the accused appellant: –
(i) The child victim was a friend of the daughter of the accused,
and they used to go to Madrassa together.
(ii) On the date of incident, the child victim was seen with the
daughter of the accused. However, she never reached Madrassa.
(iii) When the child victim did not return home, an extensive
search was conducted and since, the child victim was last seen
with the daughter of the accused, the needle of suspicion pointed
towards the house of the accused, more particularly because his
house was situated close by the Madrassa.
(iv) Nazarudheen (PW-2) tried to repeatedly search the house of
the accused along with neighbours and in the efforts to trace out
the child victim, the witness found the house of the accused locked
in his first and second attempts.
27
(v) During the third search attempt, the witness(PW-2) found the
accused sitting in verandah of his house. Upon being asked for the
permission to search his house, the accused stated that the keys
of the house were with his wife, and he would bring it himself.
(vi) The witness Nazarudheen (PW-2) during the third attempt,
searched the slopping shed and the bathroom adjacent to the
house but to no avail whereafter, he went to search the pond near
the house of the accused.
(vii) After searching the pond, the witness(PW-2) fixed the battery
of the torch which he had called from his father, since it was dark
and reached near the Madrassa.
(viii) In the fourth attempt, witnesses namely, Nazarudheen
(PW-2), Shamsudheen (PW-8) and Unnikrishnan (PW-12) got
suspicious of the accused’s conduct and resumed the search of the
house of the accused and even this time, the house of the accused
was locked, and the accused was not present there. PW-12
inspected the bathroom by lighting his torch and found a heap of
clothes, which was removed by PW-8 and the dead body of the
child victim was discovered concealed thereunder.
(viii) Two stones of the septic tank inside the house of the accused
were also found moved.
28
(ix) Blood-stained pink colour midiskirt (MO-7), petticoat (MO-8)
and black miditop (MO-9) worn by the deceased child victim were
identified by her mother(PW-9), recovered by the police officials
from the house of the accused and were seized. An
underwear(MO11) of the deceased was also found in the kitchen of
the house of the accused.
(x) Blood stains were found on the cot and floor beneath it.
(xi) As per the postmortem report26, a total of 37 ante mortem
injuries were found on the child victim’s body along with injuries
on the genitalia, suggestive of forcible penetrative sexual assault.
The cause of death was opined to be manual compressive and
ligature constrictive strangulation.
(xii) As per the FSL report27, the midiskirt worn by child victim,
the dhoti of the accused and cotton gauze collected from the scene
of crime contained human spermatozoa and semen. The hair
collected from the crime scene matched with the hair of the
deceased child victim.
(xiii) The DNA report28 clearly proved that the DNA profile of the
semen stains found on the midiskirt (MO-7) matched with that of
26 Exhibit P-15
27 Exhibit P-13
28 Exhibit P-14
29
the accused. Further, the blood stains found on the cot and
beneath it were that of the deceased child victim.
(xiv) The slippers, hard-board writing pad, plastic cover of the
writing pad, grey coloured pen and light rose small plastic carry
bag belonging to the deceased child victim, as identified by her
mother (PW-9), were recovered in furtherance of the voluntary
disclosure statement29 of the accused.
26. Based on the analysis of the evidence on the record, we are
of the view that the chain of incriminating circumstances required
to bring home the guilt of the accused is complete in all aspects.
In the present case, we affirm that the prosecution has been able
to prove the guilt of the accused appellant by fulfilling the five
golden principles (Panchsheel) laid down by this Court in the case
of Sharad Birdhichand Sarda(supra) and that the
circumstances present before us, taken together establish
conclusively only one hypothesis that being the guilt of the accused
appellant.
27. In the wake of the discussion made hereinabove, there is no
doubt in the mind of the Court that the prosecution has proved by
leading clinching and convincing circumstantial evidence that the
29 Exhibit P-23
30
accused had committed forcible and violent sexual assault on the
child victim and, thereafter, strangled and killed her.
28. While we concur with the ultimate conclusions reached by
the learned trial Court and the High Court, we cannot overlook the
deficiencies in the methodology adopted by both the Courts in the
appraisal and analysis of the circumstantial evidence. The manner
in which the evidence has been scrutinized lacks the depth and
rigor expected, raising concerns about the adequacy of the
evaluative process undertaken to arrive at the said decisions.
29. The Courts have undertaken an examination of the
testimonies of the witnesses but has omitted to delineate the
inferences derivable therefrom. Moreover, they failed to expound
upon how the prosecution has succeeded in constructing an
unbroken chain of circumstances that irrefutably establishes the
culpability of the accused to the exclusion of any other hypothesis.
30. We deem it essential to enunciate the principles that courts
must adhere to while appreciating and evaluating evidence in
cases based on circumstantial evidence, as follows:
(i). The testimony of each prosecution and defence witness must
be meticulously discussed and analysed. Each witness’s evidence
should be assessed in its entirety to ensure no material aspect is
31
overlooked.
(ii). Circumstantial evidence is evidence that relies on an
inference to connect it to a conclusion of fact. Thus, the reasonable
inferences that can be drawn from the testimony of each witness
must be explicitly delineated.
(iii). Each of the links of incriminating circumstantial evidence
should be meticulously examined so as to find out if each one of
the circumstances is proved individually and whether collectively
taken, they forge an unbroken chain consistent only with the
hypothesis of the guilt of the accused and totally inconsistent with
his innocence.
(iv). The judgment must comprehensively elucidate the rationale
for accepting or rejecting specific pieces of evidence, demonstrating
how the conclusion was logically derived from the evidence. It
should explicitly articulate how each piece of evidence contributes
to the overall narrative of guilt.
(v). The judgment must reflect that the finding of guilt, if any, has
been reached after a proper and careful evaluation of
circumstances in order to determine whether they are compatible
with any other reasonable hypothesis.
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31. Consequently, the appeals lack merit and are hereby
dismissed. However, the question of execution of death sentence
awarded to the appellant has been rendered otiose, considering the
fact that he has passed away. Thus, there remains no question of
dealing with the aspect of capital punishment awarded to the
appellant(since deceased).
32. Pending application(s), if any, shall stand disposed of.
………………….……….J.
(B.R. GAVAI)
………………….………..J.
(K.V. VISWANATHAN)
………………………….J.
(SANDEEP MEHTA)
New Delhi;
January 07, 2025.
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