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2013 DIGILAW 1245 (MP)

In Reference v. Kamlesh @ Ghanti

2013-10-11

RAJENDRA MENON, ROHIT ARYA

body2013
JUDGMENT : RAJENDRA MENON, J. 1. The Sessions Judge, Datia by the impugned judgment dated 22-7-2013, in Sessions Trial No. 85/2013, has sentenced the appellant to death for committing the offence of rape and murder of a 7 year old girl and has referred the matter under section 366 of the Code of Criminal Procedure, for confirmation of the death sentence. The appellant has been convicted for offences under sections 376-A, 302, 201, 363 and 366-A of the Indian Penal Code and has been sentenced to death; death and fine of Rs. 5,000/- five years rigorous imprisonment and fine of Rs. 5,000/- and, seven years rigorous imprisonment and fine of Rs. 5,000/- respectively. In addition, appellant has also been convicted under section 4 of the Child Protection Act, and sentenced to imprisonment for life and fine of Rs. 5,000/-. 2. Challenging the same judgment of the learned Sessions Judge, appellant Kamlesh @ Ghanti has also filed an appeal under section 374 of the Code of Criminal Procedure. 3. Since the Reference and the Appeal arise out of the same judgment, both are being decided by this common judgment. 4. It is the case of the prosecution that complainant Gulzar Singh, father of the child in question, is resident of village Dongarpur. He has a kirana (grocery) shop in his house. It is alleged that on 18-4-2013, at about 7.00 in the evening, accused Kamlesh @ Ghanti came to the shop and purchased ‘bindol’ (packet of beedi) and gutka. The accused was staying with his cousin and her husband Ramsewak Kushwaha in the same village. He was known to the family of Gulzar Singh. The family of Gulzar Singh consisted of his wife, son aged about 14 years and his minor daughter, aged seven years. It is stated that near the house, there is a Chabootra. At about 7 P.M. on the day in question i.e. 18-4-2013, the child was playing on the Chabootra, her mother was sitting nearby and the father and son were in the shop when accused Kamlesh @ Ghanti came to the shop, purchased bindol and gutka. While returning he went to the child and told her that the jwar procession in connection with Navratri festival is going on in the village and if she was interested, he could take her. While returning he went to the child and told her that the jwar procession in connection with Navratri festival is going on in the village and if she was interested, he could take her. It is stated that the child was tempted to go with him for seeing the festive procession. The parents did not object to the same, as the child was known to the appellant and used to call him ‘Mamaji’ (uncle). Accordingly, it is said that the appellant picked up the child in his arms and went towards the handpump, on his way to the village where the procession was to pass by. Thereafter, it is said that father of the child PW-1 Gulzar Singh also went to see the procession. When he returned back to the house after about two hours, he was informed by his wife that the girl child has not returned after seeing the procession. It is alleged that Gulzar Singh, father of the child, went in search of his child to the village. However, as he did not see the child or appellant Kamlesh @ Ghanti, he came back to his house after about two hours. He anticipated that the child will be dropped back by the appellant. However, they did not come in the night. Next day, early in the morning around 6.00 A.M. Badri Kushwaha - resident of the village, came to the house of Gulzar Singh and informed that dead body of the child is lying in the agricultural field of Badri Kushwaha. On hearing this they rushed to the field, where they saw the dead body of the child lying, blood was oozing out of her mouth, nose and her kurti and undergarment were drenched with blood. Immediately, Gulzar Singh recognized his daughter and informed the authorities of Police Station Goraghat on phone (mobile). Immediately, thereafter, the police authorities came to the spot, the Panchnama of the dead body was prepared, all the required formalities were completed and based on the statement of the witnesses, the appellant was arrested and put to trial. 5. The clothes worn by the appellant and the child in question were seized and sent for Forensic Examination. Plain mud and blood stained mud from the area where the child was lying was also taken for Forensic Examination. 5. The clothes worn by the appellant and the child in question were seized and sent for Forensic Examination. Plain mud and blood stained mud from the area where the child was lying was also taken for Forensic Examination. DNA Test and Profiling was undertaken and at the instance of the accused, a yellow coloured Katri was also seized from a hut belonging to one Balkishan Kushwaha. The Katri was lying on a cot and it was also soaked with blood. Based on the aforesaid the accused was put to trial. In the trial, 22 witnesses were examined. They are: (a) PW-1 Gulzar Singh - father of the child in question. (b) PW-4 Smt. Sushma - mother of the child. (c) PW-5 Vikram - elder brother of the child. That apart, the other witnesses examined as are under. (d) PW-2 Ram Kumar Katare - Head Constable of PS Goraghat, to prove Dehati Nalishi - Ex.P/1 and the First Information Report - Ex.P/8. (e) PW-3 Bhagwan Singh - another Head Constable of the same Police Station, to prove various documents, seizures etc. (f) PW-6 Badri Kushwaha - the person concerned in whose agricultural field, dead body of the child was found. (g) PW-7 Balkishan - from whose hut near the agricultural field of PW-6 Badri, the yellow colour Katri was seized. Balkishan is also a witness who had accompanied father of the child Gulzar Singh in the night of 18-4-2013, while searching for the child in the village. (h) PW-8 Ishwari Kushwaha - who saw the accused carrying the child at about 8.00 P.M. on 18-4-2013, towards the field of Balkishan, while he was milking his buffaloes at about 8-8.30 in the night. (i) PW-9 Bhawani Singh - a witness to the seizure of the dead body and other documents. (j) PW-10 Satyendra Singh - a witness to arrest of the accused, preparation of the memorandum at the instance of the accused under section 27 of the Evidence Act, and various other investigative formalities. (k) PW-11 Dhawal Singh Chouhan - In-charge of the Police Station and the Investigating Officer. (l) PW-12 Dr. Ajay Gupta - Specialist in Gajraja Medical College, Gwalior, who had conducted the post-mortem of the child. (m) PW-13 Madan Mohan Sharma - Naib Tehsildar, District Datia who had conducted the inquest and other formalities with regard to the body of the child. (l) PW-12 Dr. Ajay Gupta - Specialist in Gajraja Medical College, Gwalior, who had conducted the post-mortem of the child. (m) PW-13 Madan Mohan Sharma - Naib Tehsildar, District Datia who had conducted the inquest and other formalities with regard to the body of the child. (n) PW-14 Manoj Kumar Shrivastava - Patwari of Village Dongarpur. He is also a witness to the preparation of the spot map and other various formalities in connection with investigation. (o) PW-15 Mansharam - Constable of Police Station Goraghat, who had collected samples of viscera, vaginal slides, clothes etc. after post-mortem and sent it for testing to the Forensic Laboratory. (p) PW-16 Kashmir Singh - also a Constable in the same Police Station - a witness to collection of samples and sending it to the Forensic Laboratory for testing. (q) PW-17 Girdhari - a witness to the arrest of the accused appellant and seizure, on the basis of memorandum - Ex.P/12. (r) PW-18 Rameshwar Sharma - Constable of Police Station Goraghat and a witness who had taken the accused for medical examination. (s) PW-19 Shiv Prakash Mishra - Head Constable who had received the articles from PW-18, relating to the medical examination. (t) PW-20 Dr. S.S. Batham, Medical Officer of District Hospital, Datia, who had medically examined the accused and submitted his report - Ex.P/26. (u) PW-21 Dr. Jaibharat - Medical Officer of District Hospital Datia, who had collected sample of the accused and sent it for medical examination, including blood sample for DNA Testing. (v) PW-22 N.S. Rawat - Deputy Superintendent of Police, also the In-charge of the entire investigation. Apart from the aforesaid 22 witnesses, 34 documents were also exhibited, which consisted of various seizures made, medical reports and other relevant documents including the DNA Profile/Reports etc. 6. Based on the aforesaid evidence and material that came on record, the learned Sessions Judge having convicted the appellant, the appellant has filed the appeal challenging the conviction and sentence imposed by the Sessions Judge. Reference has also been made for confirmation of the death sentence, as required under section 366 of the Code of Criminal Procedure, by the learned Senior Judge. 7. Shri Ravindra Dixit, learned counsel for the appellant, argued that the entire conviction and sentence has been ordered on the basis of circumstantial evidence that has come on record. Reference has also been made for confirmation of the death sentence, as required under section 366 of the Code of Criminal Procedure, by the learned Senior Judge. 7. Shri Ravindra Dixit, learned counsel for the appellant, argued that the entire conviction and sentence has been ordered on the basis of circumstantial evidence that has come on record. It was submitted by him that there is no direct evidence or eye-witness to the entire incident. The circumstantial evidence according to learned counsel for the appellant is not sufficient enough to hold the appellant guilty of the offence and to convict him. It was further argued that there are various missing links in the circumstances which are fatal to the case of the prosecution. Accordingly, the first contention was that the chain of circumstances was not complete enough to warrant conviction. 8. It was then argued by learned counsel for the appellant that initially the First Information Report - Ex.P/15, at 6.30 A.M. on 19-4-2013, was lodged on phone (mobile) by the father of the deceased child i.e. PW-1 Gulzar Singh, and when this information was given the name of the appellant was not indicated as the person responsible for having committed the offence. It was argued that his name was included later on, at 7.30 A.M. on 19-4-2013, when the First Information Report was actually written. Accordingly, a case of false implication was tried to be developed on this count. 9. Shri Ravindra Dixit, learned counsel for the appellant, further stated that the section 161, Criminal Procedure Code statement of various witnesses that were recorded at the time of investigation was neither exhibited nor the witnesses confronted with these statements. Accordingly, this was said to be a material flaw in the trial conducted. Thereafter, referring to the post-mortem report - Ex.P/19, learned counsel for the appellant argued that an ante-mortem head injury is found on the back side of the child's head. This injury is not explained by the prosecution and the Doctor, who had conducted the post-mortem - PW/12 Dr. Ajay Gupta, does not explain this injury. It is emphasized by learned counsel for the appellant that the chain of circumstances, therefore, remains incomplete because of these facts. This injury is not explained by the prosecution and the Doctor, who had conducted the post-mortem - PW/12 Dr. Ajay Gupta, does not explain this injury. It is emphasized by learned counsel for the appellant that the chain of circumstances, therefore, remains incomplete because of these facts. Learned counsel thereafter referred to the material seized from the body of the child and says that there is no mention of seizure about ‘chunni’ from the body of the child in Ex.P/10. In Ex.P/10 - seizure memo, even though there is no mention of a ‘chunni’ but in the medical examination report reference is made to a chunni. It is said that presence of this ‘chunni’ remains unexplained by the prosecution. This according to Shri Dixit, learned counsel for the appellant, is a fatal error in the entire case of the prosecution. 10. Learned counsel for the appellant thereafter submitted that the Doctor/Scientist or Expert, who had conducted the DNA Test and submitted report - Ex.P/33, has not been examined and as this Expert has not been examined and was not made available for cross-examination to the accused, therefore, the DNA Report cannot be accepted. It was stated that at the time of the incident the accused is found to have been wearing a lower and it is said that there were blood stains on this lower. However, this lower has not been sent for examination and there is no explanation with regard to the injury on the person of the accused. It is further argued that the material collected like viscera etc. were sent for medical examination on 21-4-2013 after they were collected on 19th and 20th April. This delay in sending the samples for examination is not explained. Accordingly, it is stated that the entire investigation and prosecution is vitiated, the appellant has been falsely implicated and it is stated that the prosecution has failed to prove the case beyond reasonable doubt. 11. Finally, Shri Dixit - learned counsel for the appellant, argued that even if the case of the prosecution is proved, the facts and circumstances of the case does not make out the same to be a ‘rarest of the rare’ case and based on this, as no capital punishment could be imposed, the matter warrants reconsideration. 11. Finally, Shri Dixit - learned counsel for the appellant, argued that even if the case of the prosecution is proved, the facts and circumstances of the case does not make out the same to be a ‘rarest of the rare’ case and based on this, as no capital punishment could be imposed, the matter warrants reconsideration. Learned counsel had also submitted that during the course of hearing the Superintendent of Police, who had signed various documents with regard to forwarding the samples for medical examination has not been examined to explain the delay of one day in sending the samples and, therefore, there is lacuna in the case of the prosecution. 12. Learned counsel for the appellant in support of his contentions relied upon the following judgments: (i) Govindraju @ Govinda vs. State by Sriramapuram Police Station, (2012) 2 SCC (Cri) 533 : (2012) 4 SCC 722 (ii) Sudevanand vs. State through Central Bureau of Investigation, (2012) 2 SCC (Cri) 179 : (2012) 3 SCC 387 (iii) Mahendra Rai vs. Mithilesh Rai and Others, (1997) 10 SCC 605 (iv) Sunil Rai @ Pauya and Others vs. Union Territory, Chandigarh, (2011) 12 SCC 258 (v) State of M.P. vs. Nisar, (2007) 3 SCC (Cri) 5 (vi) Halku vs. State of Madhya Pradesh, ILR (2011) MP 529 (vii) Mustkeem @ Sirajudeen vs. State of Rajasthan, (2011) 3 SCC (Cri) 473 : (2011) 11 SCC 724 (viii) Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 (ix) Haresh Mohandas Rajput vs. State of Maharashtra, (2011) 12 SCC 56 (x) Jugendra Singh vs. State of Uttar Pradesh, (2012) 6 SCC 297 13. Refuting the aforesaid Shri Vivek Khedekar, learned Deputy Advocate General, emphasized that the appellant was a known person; he was residing in the village; the child was known to him, she used to address him as ‘Mamaji’ and committing breach of trust which the child and her parents had on him, a gruesome and barbaric act has been committed by the appellant and, therefore, it is a fit case where it can be classified as a ‘rarest of rare case’ warranting imposition of the extreme punishment i.e. capital sentence. Learned Deputy Advocate General explained each and every circumstance and tried to submit before us that the grounds canvassed by Shri Dixit are not so fatal to the case of the prosecution that the story put forth by the prosecution cannot be believed. It is submitted by him that each and every circumstance necessary for conviction of the appellant is available and the hypertechnical lacuna and objections raised by the appellant's counsel does not warrant any consideration. 14. As far as examination of the Doctor who conducted the DNA Test is concerned, Shri Khedekar referred to the DNA Profile/Test Report - Ex.P/33, available at Page 58 of the paper book, and argued that the report will clearly show that it was submitted by a Scientific Expert under the provisions of section 293, Criminal Procedure Code, and once the Expert has submitted the report it can be used as evidence and summoning the Expert for examination is not required. Accordingly, it was argued by him that in the facts and circumstances, the reference be answered by confirming the sentence and the appeal filed by the appellant be dismissed. 15. In support of his contentions, learned Deputy Advocate General relied upon the following judgments: (i) Bantu vs. State of Uttar Pradesh, (2008) 11 SCC 113 (ii) Aftab Ahmad Ansari vs. State of Uttaranchal, (2010) 2 SCC 583 (iii) Parshuram vs. State of M.P. 2012 (4) MPHT 138 (DB) (iv) Shankar Kisanrao Khade vs. State of Maharashtra, (2013) 5 SCC 546 (v) Sunil Kundu and Another vs. State of Jharkhand, (2013) 4 SCC 422 16. We have heard learned counsel for the parties and perused the records. 17. It is clear from the material available on record that the case of the prosecution against the appellant is based on circumstantial evidence. The law with regard to conviction solely on the basis of circumstantial evidence is well settled and the same has to be tested on the basis of the law laid down by the Supreme Court in the case of Hanumant Govind Nargundkar vs. State of Madhya Pradesh, AIR 1952 SC 343 , Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 and State of U.P. vs. Satish, (2005) 3 SCC 114 . That being so, we propose to consider the evidence on record to see as to whether the principle laid down by the Supreme Court in the cases referred to hereinabove are met and the circumstances established by the prosecution are sufficient enough to make it a case for conviction for the offence alleged against appellant Kamlesh @ Ghanti. 18. PW-1 Gulzar Singh is father of the child in question and he has clearly stated in his evidence that on 18-4-2013, in the evening at about 7.30 P.M. while he was in his house and was sitting in his shop with his son PW-5 Vikram, appellant Kamlesh @ Ghanti came to the shop and purchased bindol and gutka. On that day, Ashtami and Jwar celebrations were going on in the village and the accused made an offer to his seven year old daughter and asked her whether she was interested in coming with him for seeing the Jwar procession, which is passing through the village. It is said by this witness that the accused instigated the small child to go with him and the child was carried by him, and he took the child and went to the village for seeing the Jwar procession. This witness further says that his wife was also sitting near the Chabootra when all this happened. He further says that after sometime he also went to see the procession, came back to the house after about two hours when he was told by his wife PW-4 Smt. Sushma that the child has not come back. He, thereafter, went to the village in search of the child and PW-6 Badri Kushwaha also accompanied him, but the child was not found. He came back to his house. Next day, at about 6.00 A.M. in the morning, PW-6 Badri Kushwaha informed him about the child's body lying in his agricultural field, he makes a statement with regard to informing the police authority on phone (mobile) from the said agricultural field, arrival of the police party and initiation of investigating process, including the inquest, seizure etc. He has also produced the birth certificate of the child, which goes to show that she was born on 12-6-2006. The statement of this witness is supported by the statement of PW-4 Smt. Sushma, mother of the child, and their 14 year old son PW-5 Vikram. He has also produced the birth certificate of the child, which goes to show that she was born on 12-6-2006. The statement of this witness is supported by the statement of PW-4 Smt. Sushma, mother of the child, and their 14 year old son PW-5 Vikram. From the statement of all these three witnesses, it is clear that the appellant was a resident of the village, he was known to the family, the child was also acquainted with him and used to call him 'Mama', and at his instance the child agreed to accompany him to see the religious procession in the village. He took the child in his arms to the place of the procession. The parents and the child believed and trusted the accused and gave him permission to take the child. 19. From the aforesaid evidence, taking away of the child by the accused and the trust which the child and the family had on the accused is established. Thereafter, from the statement of PW-6 Badri Kushwaha, the body of the child being found in his agricultural field next day at about 6.00 A.M. is established, and the statement of PW-7 Balkishan goes to show that on a cot which was lying in his hut, which is very near to the agricultural field of PW-6 Badri Kushwaha, a yellow coloured Katri which was stained with blood, was also seized. PW-8 Ishwari Kushwaha is a resident of the village and he has testified that on 18-4-2013, at about 8.30 P.M. he had seen the accused carrying the child in his arms/lap and going towards the field of Badri Kushwaha. Accordingly, the statement of all these witnesses does show that the accused took the child to the field of Badri Kushwaha, and, from the hut situated in the field of Balkishan, certain material i.e. Katri has been seized and on medical examination it is found to be stained with blood of both the child and the appellant. That apart, the DNA profiling of the accused has also been conducted, which establishes the presence of various factors that implicates the appellant with the commission of the offence. The DNA Report - Ex.P/33 reads as under: 20. That apart, the Forensic Report of the Katri also shows that it was stained with blood and the same belonged to the child and the appellant. The DNA Report - Ex.P/33 reads as under: 20. That apart, the Forensic Report of the Katri also shows that it was stained with blood and the same belonged to the child and the appellant. Apart from the aforesaid, the photographs of the child lying in the field - Ex.P/27 and P/28, and the medical examination of the child goes to show that she was sexually abused and more than 21 injuries were found on her person. PW-12 Dr. Ajay Gupta had conducted the post-mortem and Ex.P/19 is the post-mortem report. The report goes to show that the body was that of an average built female child about seven years, she was subjected to sexual intercourse and an ante-mortem head injury was found on her body. Death of the child was said to be due to asphyxia. Opinion with regard to death is indicated in the following manner in the post-mortem report: “Opinion - Death was due to asphyxia as a result of smothering. Homicidal in nature. Signs of RECENT SEXUAL INTERCOURSE also present. Duration of death is within 12 to 24 hours since post-mortem examination.” That apart, Professor Dr. J.N. Soni and PW-12 Dr. Ajay Gupta, who conducted the post-mortem, have reported the following 21 injuries on the person of the child, which reads as under: (a) 08 crescenteric abrasion (finger nail like). Red colour over right angle of mandible and reymus of mandible 01 cm size each, 01 to 1.5 cm apart from each other covering 8 x 7 size area. (b) Reddish blue contusion from right reymus of mandible towards right cheek 7 x 4.5 cm size x muscle deep. (c) 5 red abrasions over forehead varying in size from 1.5 x 1 to 1 x 1 cm size covering 6 x 5 cm size area. (d) contusion reddish blue in colour, parallel to left reymus of mandible and adjacent cheek 8 x 3.5 cm size and muscle deep. (e) red contusion lateral to left eyebrow 4 x 2 cm size x skin deep. (f) contusion reddish blue over right upper lid 3 x 2 cm size. (g) contusion reddish blue left upper eye lid 2.5 x 1.5 cm size. (h) diffused sub-conjunctinal haemorrhage present in both eyes. (i) reddish blue contusion upper lip 4 x 3 cm size. (j) reddish blue contusion lower lip 3.5 x 2.5 cm size. (f) contusion reddish blue over right upper lid 3 x 2 cm size. (g) contusion reddish blue left upper eye lid 2.5 x 1.5 cm size. (h) diffused sub-conjunctinal haemorrhage present in both eyes. (i) reddish blue contusion upper lip 4 x 3 cm size. (j) reddish blue contusion lower lip 3.5 x 2.5 cm size. (k) diffused cickymosis present in gums of both jaw. (l) red abrasion medial to left nipple over chest 7 x 1.5 cm size. (m) multiple abrasion over left forearm varying in size from 2 x 1 cm to 1.5 x 0.5 cm size covering 15 x 11 cm size area. Red in colour. (n) 4 red coloured abrasion over upper 1/3 of right arm 2 x 1, 1.5 x 1, 1 x 1, 1 x 0.5 cm size, 1 cm apart from each other. (o) interrupted abrasion from right elbow to forearm covering 6 x 2.5 cm size area. (p) 3 red abrasions over left lumbar area 4 x 1, 3 x 1 and 2.5 x 1.5 cm size. (q) contusion mid of left leg posteriorly 3 x 2 cm size x muscle deep. (r) red abrasion below umbilicus 5 x 4 cm size. (s) red abrasion mid line over neck transversely at the level of thyroid cartilage 6 x 3 cm size. (t) reddish blue contusion right arm upper end laterally 3 x 1.5 cm size x muscle deep. (u) contusion reddish blue colour left arm midpart 2.5 x 2 cm size x muscle deep. 21. From the aforesaid narration of facts, it is clear that the entire circumstances gives a complete picture of the sequence of events that would have happened and analysis of the oral evidence read along with the medical evidence and the report of the expert authorities (DNA Test) shows that all the links necessary for completing the chain of circumstances are clearly established and there is no iota of doubt that the offence was committed by the appellant. Infact the appellant has not explained various circumstances with regard to the presence of the child's blood along with his blood on the Katri, on his clothes and the seized materials as are indicated, in the DNA Report, which also show that the vaginal slide of the child matches with the DNA profile found on the underwear of the accused and various other findings recorded in the DNA report is sufficient enough to implicate the appellant. All these circumstances do establish that the appellant is guilty of the charges levelled against him. 22. With regard to acceptance of the circumstantial evidence and conviction based on such circumstantial evidence, the law is well settled. In the case of Padala Veera Reddy vs. State of A.P. 1989 Supp. (2) SCC 706, it has been held by the Supreme Court that to base a conviction upon circumstantial evidence, the evidence available should satisfy the following four tests: “10......... (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 23. Similarly, in the case of Hanumant Govind Nargundkar (supra), it has been held that the circumstances from which the conclusion of guilt is to be drawn should be first established and on the basis of these established facts, a hypothesis of guilt of the accused should be derived. It is held that the circumstances found established should be conclusive in nature and they should be such so as to exclude every other hypothesis except guilt of the accused. It is held that the circumstances found established should be conclusive in nature and they should be such so as to exclude every other hypothesis except guilt of the accused. Infact in the aforesaid case, the Supreme Court says that there must be a chain of evidence complete in all respect so as to leave no reasonable ground to conclude any fact with regard to innocence of the accused and the facts should show that within all human probability the act must have been done by the accused. 24. Similarly, in the case of Sharad Birdhichand Sarda (supra), dealing with the question of basing a conviction solely on circumstantial evidence, it has been held by the Supreme Court that the onus is on the prosecution to prove that the chain of circumstances is complete and there is no infirmity or lacuna in the case of the prosecution. In the aforesaid case, Supreme Court has laid down five conditions precedent, which should be fully established for basing a conviction on circumstantial evidence. The five conditions are detailed herein-under: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established. (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. (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.” 25. This being the principle of law laid down by the Supreme Court for conviction based on circumstantial evidence and when we analyse the facts and circumstances of the case based on the evidence available, in the backdrop of the principle as indicated hereinabove, we have no hesitation in holding that the circumstantial evidence available is complete and conclusive in all respects and it only points to the guilt of the appellant and nothing else. Accordingly, we hold that in convicting the appellant on the basis of the said evidence, no error has been committed by the trial Court. 26. As far as the objections raised by Shri Dixit at the time of hearing is concerned, we are of the considered view that they are very minor and hyper-technical in nature and they do not make the case of the prosecution so fatal so as to discard it completely. Merely because at the initial stage when the report was made on phone (mobile) at 6.30 A.M. to the Police Station and name of the accused was not mentioned by PW-1 Gulzar Singh, it cannot be said that the appellant was falsely implicated in the light of the overwhelming circumstances which are available on record. That apart, non-examination of the Expert, who gave the DNA Report, is not required in the light of the statutory provision as is contained in Section 293 of the Criminal Procedure Code, which permits admission of the report without any examination of the Expert, who gave the report. The Doctor who gave the report - Ex.P/33 is Dr. Pankaj Shrivastava, Scientific Officer and Assistant Chemical Examiner, Government of Madhya Pradesh and is a statutorily notified person as is contemplated under section 293(4)(a), Criminal Procedure Code and, therefore, his report can be admitted without his examination. 27. The other contention raised by Shri Dixit, particularly with regard to seizure of Chunni not being explained or the delay of one day in sending the viscera, blood samples etc. for medical/chemical examination cannot be termed as a mitigating circumstance for falsifying the case of the prosecution or drawing the assumption of false implication. On the contrary, the documents available on record particularly the communication made by the Superintendent of Police in Ex.P/29, the letter forwarding the material for examination, goes to show that the seizure of the material was done on 19-4-2013 and 20-4-2013, and they were all forwarded on the next date i.e. 21-4-2013, for chemical examination. That being so, we are not inclined to accept the contention of Shri Dixit to the effect that there are various lacuna in the case of the prosecution which warrants interference into the order of conviction. The lacunae pointed out are not so fatal so as to discard the entire case of the prosecution. That being so, we are not inclined to accept the contention of Shri Dixit to the effect that there are various lacuna in the case of the prosecution which warrants interference into the order of conviction. The lacunae pointed out are not so fatal so as to discard the entire case of the prosecution. Accordingly, from the facts and circumstances as are indicated by us hereinabove, it is clear that the judgment of the trial Court so far as it finds the appellant guilty of the offence does not suffer from any infirmity. 28. Now, the only question that survives for consideration is with regard to justification of the punishment imposed and a consideration as to whether the case in hand falls in the category of ‘rarest of rare case’ justifying awarding of the extreme punishment i.e. capital punishment. 29. To consider this question, it would be appropriate to take note of certain judgments of the Supreme Court, wherein question with regard to the offence in question and the punishment imposed in somewhat similar circumstance has been considered. 30. The Supreme Court in several cases has awarded capital punishment where rape and murder have been committed particularly on minor girls. In the case of Bachan Singh vs. State of Punjab, (1980) 2 SCC 684 , it has been held by the Supreme Court, that while considering the question of sentence to be imposed in a case of murder under section 302, Indian Penal Code, the Court should have regard to other relevant circumstances relating to the crime as well as the criminal. It is held that if the Court finds that the offence is of an exceptionally depraved and heinous character on account of its design and manner and its execution; is a source of grave danger to the society at large, death sentence may be imposed. 31. In the case of Machhi Singh vs. State of Punjab, (1983) 3 SCC 470 , with regard to murder of an innocent child, capital punishment was imposed after classifying the case as a rarest of the rare case. It was held by the Supreme Court that offence committed against an innocent child, who could not have made any provocation, has to be held to be an act which is extremely brutal, diabolically revolting and shocking the conscience of the society. 32. It was held by the Supreme Court that offence committed against an innocent child, who could not have made any provocation, has to be held to be an act which is extremely brutal, diabolically revolting and shocking the conscience of the society. 32. In the case of Nathu Garam vs. State of U.P. (1979) 3 SCC 366 , death sentence was confirmed because of causing death of a 14 year old girl by a 28 year old man. 33. Again, in the case of Dhananjoy Chatterjee vs. State of West Bengal, (1994) 2 SCC 220 , in paragraphs 14 and 15, the Supreme Court has laid down the test in the following manner: “14. In recent years, the rising crime rate - particularly violent crime against women has made the criminal sentencing by the Courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished, thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences, in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration. 15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the Courts respond to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting to the crime so that the Courts reflect public abhorrence of the crime. Imposition of appropriate punishment is the manner in which the Courts respond to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting to the crime so that the Courts reflect public abhorrence of the crime. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.” (Emphasis supplied) 34. In the case of Laxman Naik vs. State of Orissa, (1994) 3 SCC 381 , death sentence was upheld in case of murder and rape of a seven year old girl by her own uncle. 35. Similarly, in the case of Kamta Tiwari vs. State of Madhya Pradesh, (1996) 6 SCC 250 , the Court considered the case pertaining to rape of a seven year old girl. In that case, it was found from the evidence available on record that the accused was very close to the family of the child, and the child used to call him uncle, as in the present case. The Court noticed the closeness of the accused to the child and her family and also took note of the encouragement given by the accused to the child to go with him to a grocery shop from where the child was kidnapped and subjected to rape and later on strangulated to death. Subsequently, the body was thrown into a well. In the case of Kamta Tiwari (supra) where similarity with the present case is found, the Court described the offence as gruesome and barbaric and pointed out that a person like the present accused, who is in a position of trust, when he commits a crime and had committed the crime without any motivation, the vulnerability of the victim and the enormity of the crime has to be taken note of and the execution of death sentence was held to be warranted. 36. Finally, all these judgments have been considered recently by the Supreme Court in the case of Shankar Kisanrao Khade vs. State of Maharashtra, (2013) 5 SCC 546 and it has been held by the Supreme Court that the aggravating and the mitigating circumstances have to be taken into account while deciding the question of imposing death penalty. 36. Finally, all these judgments have been considered recently by the Supreme Court in the case of Shankar Kisanrao Khade vs. State of Maharashtra, (2013) 5 SCC 546 and it has been held by the Supreme Court that the aggravating and the mitigating circumstances have to be taken into account while deciding the question of imposing death penalty. In this case, the Supreme Court has laid down few examples pertaining to aggravating circumstances and has named a few which includes innocence of the victim; helplessness of the victim; trust relied upon by the victim and her family members on the accused; the crime being committed with the helpless child or a woman and brutality of the crime which pricks not only the judicial conscience but also the conscience of the society. 37. Some of the mitigating circumstances as have been indicated by the Supreme Court in the aforesaid judgment and the manner and circumstance with regard to commission of the offence are available in the present case also. Namely: the closeness of the accused to the family; the victim was known to the accused; the manner in which the accused misused or betrayed the trust bestowed on him by all concerned, particularly the parents and the child; the manner in which the crime is committed, as is apparent from the injuries on the person of the child and the post-mortem report, which goes to show the gruesome and brutal manner in which the child was dealt with in the darkness of the night in an isolated place; and, thereafter thrown in the agricultural field amidst the crops of wheat that were lying there. All these circumstances are nothing but aggravating and mitigating circumstances as laid down by the Supreme Court in the case of Shankar Kisanrao Khade (supra) for holding that the circumstances present are such that it can be classified as a ‘rarest of rare case’ and we have no hesitation in so holding. Infact as held by the Supreme Court in the case of Shankar Kisanrao Khade (supra), the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime and the execution thereof are factors which have to be kept in mind in awarding death sentence and terming it as a rarest of the rare case. All these facts are present in the present case. 38. All these facts are present in the present case. 38. While awarding death sentence, the Court has to apply the ‘rarest of rare’ test depending upon the perception of the society i.e.. a society centric view has to be taken and not a judge centric view. It has to be seen as to whether society will approve awarding of the death sentence to certain type of crime and if the society centric view is applied to the ‘rarest of rare’ test, in the present set of circumstances, we have no hesitation in holding that this is a fit case where the capital sentence can be imposed. The act of the accused is not only inhuman and barbaric, but he has committed a ruthless crime on an innocent seven year old girl and thereafter strangulated her to death. 39. Keeping in view the totality of the circumstances and the legal principles as has been detailed hereinabove, we are of the considered view that the crime in question was committed by the appellant in a pre-determined and cold-blooded manner on a small child without any provocation. The crime is cruel, diabolic and brutal in nature. The appellant being in a position of trust is responsible for having acted in a manner which brings this case in the category of ‘rarest of rare case’ where sentence of death is more desirable than any other punishment. 40. In the result, the reference made by the Court below is answered in the affirmative, by confirming the death sentence awarded to the appellant. The conviction and the death sentence awarded to the appellant are hereby affirmed. The appeal filed by the appellant is hereby dismissed.