JUDGMENT Amar Saran, J This capital appeal arises from a judgement of theAdditional Sessions Judge (Court no. 6), Budaun dated31.1.2013 in S.T. No. 505 of 2012 whereby the appellantAkhtar has been awarded a sentence of death under Section302 I.P.C together with a fine of Rs. 25,000/. The appellantAkhtar has also been sentenced to imprisonment for lifeunder section 376 I.P.C and a fine of Rs. 25,000/, and undersection 201 I.P.C, appellant Akhtar has been sentenced to 7years RI and a fine of Rs. 7000/. A death reference has alsobeen forwarded to this Court by the Sessions Judge forconfirming the sentence of death awarded to the appellantAkhtar. We have heard Sri G.S. Chaturvedi, Senior Advocate,assisted by Sri Ajatshatru Pandey for the appellant and SriAkhilesh Singh, learned Government Advocate assisted by SriR.K. Singh and Sri Anand Tiwari, learned A.G.As for the State.Written arguments along with case law have also been filed bythe learned counsel for the parties. Background and evidence The first information report of this case was lodged byPW-1 Baise Ali, father of the deceased Noor-un Nisha on4.4.2012 at 8.15 p.m at the police station Ujhani. This FIRalleges that Noor-un Nisha aged about 12 years had gone tograze her buffaloes in the afternoon in the direction of J.S.Talkies. When she did not return till 5.00 p.m then a searchwas made for her by the informant and other residents of theMohalla. At about 6.00 P.M, when the informant, his brotherAfzal and Mohalla neighbours Afzal and Islam were crossingthe lane in front of the house of the appellant near SapraGuest House, they saw the appellant throwing the body ofNoor-un Nisha out side his house. The informant and otherpersons caught hold of the appellant Akhtar in Mohalla GaddiTola. Noor-un Nisha had died and there was a round mark onher neck and there were injuries on her body. With the help ofBaise and Afzal , the appellant was brought to the policestation where a report was lodged alleging that the appellantAkhtar had raped and murdered Noor-un Nisha on 4.4.2012.The case was registered at the police station at Crime No. 605of 2012 under sections 375, 302, 201 I.P.C in the presence ofthe investigating officer Ashok Kumar Singh. Inspector Ashok Kumar Singh, P.S. Ujhani commencedthe investigation of the case. Inspector Ashok Kumar Singh, P.S. Ujhani commencedthe investigation of the case. He arrived at the spot along withSI Raj Bahadur and female constable Parul Yadav and others.He directed SI Raj Bahadur to take steps for getting theinquest done on the body of the deceased and he recordedthe statement of the informant. He prepared the recoverymemos (Ext. Ka 11) of some black and Henna coloured hairwhich were found between the fingers of both the hands ofthe deceased Noor-un Nisha. He placed the hair on a whitepaper and then placed the same in a plastic box and sealedthem after wrapping the packet with a piece of cloth. Heinspected the spot and got photographs taken of the body andthe spot. Thereafter, he sent the dead body for post-mortem.He also collected the tiffin box, steel plate, grass and grassleaves tied with a string. The said items were wrapped in aDupatta which were lying near the body. He also took out theappellant Akhtar from the police lockup, who is said to haveconfessed to his crime. The appellant also agreed to take thepolice to the place, where he had strangulated the deceased.The I.O thereafter brought the appellant Akhtar to the spotalong with SI Raj Bahadur Rastogi and SI Nareshpal Singh. Theappellant took the keys of his house from his neighbour Dr.Netrapal. He opened the lock of his shop and climbed up thestairs and opened the lock of the room. He then pointed outthe bed in the room, where he admitted to have committedthe crime. Then the room and bedding were examined. On thebedding, some broken pieces of red coloured bangles andlong hair were found. The recovery memos of the hair andbangles were made. The post-mortem on the dead body was conducted by Dr.Amit Kumar on 4.5.2012 at 2.25 p.m along with Dr. HarpalSingh. The age of the deceased was about 12 years. Timesince death was ¾ days. It was an average built body. Rigormortis was present on all the four limbs. Postmortem stainingwas present on the dependent parts. The mouth and eyeswere half open. Eyes, face and neck were congested. Ante-mortem injuries: 1. Multiple abrasions over front of neck in an area 9 cm x 4 cm. Varying from maximum 3 c x 2 cm to minimum 1 x 1 cm. 2. Multiple abrasions over back of neck maximum 1.5 x 1 cm, minimum 1 x 0.5 cm in an area of 7 x 3 cm. Ante-mortem injuries: 1. Multiple abrasions over front of neck in an area 9 cm x 4 cm. Varying from maximum 3 c x 2 cm to minimum 1 x 1 cm. 2. Multiple abrasions over back of neck maximum 1.5 x 1 cm, minimum 1 x 0.5 cm in an area of 7 x 3 cm. On dissection of neck. Internal tissue were echymosed. Trachea was found congested, hyoid bone found fractured. 3. Lacerated wound on tip of lower finger of left hand 0.5 x 0.5 cm. 4. Multiple abrasions on back of abdomen maximum 3 cm x 2 cm to minimum 1 cm x 0.5 cm. 5. Contusion on left side of face 2 x 2 cm. 6. Abrasion just below right knee 2 x 1 cm. 7. On internal examination of genitalia, the hymen was found lacerated, lacerated wound 2 x 0.5 cm on right labia minora. Clotting of blood found in vaginal canal. Note: Vaginal smear slide was prepared for pathological examination (including D.N.A. Examination) and hair of scalp was also preserved for forensic examination. On internal examination, the brain was found congested. Right and left lungs were congested. In the opinion of the doctor, the cause of death was asphyxia as a result of antemortem throttling. The death could have taken place on 4.4.2012 at about 6.00 p.m. To the court question, whether there was any injury ofteeth bite on the cheek, the doctor replied that there was acontused mark on the cheek which could be possible becauseof a teeth bite. To another court question whether rape couldhave possibly been committed on the deceased, he answeredin the affirmative. The appellant Akhtar was also sent for medicalexamination. The doctor examining the appellant prepared aslide and took a blood sample and sample of hair of the headand beard of the appellant and forwarded them to the policestation. The hair of the appellant which was collected frombetween the fingers of the deceased Noor-un Nisha and thehair of the head and beard of the appellant which were cut bythe doctor and the hair which were found from the spot andthe hair of the deceased which were cut by Dr. The hair of the appellant which was collected frombetween the fingers of the deceased Noor-un Nisha and thehair of the head and beard of the appellant which were cut bythe doctor and the hair which were found from the spot andthe hair of the deceased which were cut by Dr. Amit KumarPW-3 when he was conducting post-mortem for forensic andpossible DNA examination, the vaginal smear slide which wasprepared at the time of post-mortem, the sample of blood ofappellant Akhtar and the appellant's underwear (i.e. a total 8items) were sent for analysis to the Forensic Laboratory, Agra. PW-5 Ashok Kumar Singh, I.O also prepared the site plan(Ex. Ka-16) of the place of incident i.e. the first floor of thehouse of the appellant Akhtar, where the dead body wasfound. After recording the statements of the witnesses andcollecting documents and other material i.e. recoverymemos , site plan of the place of incident, inquest, postmortemreport, the I.O submitted a charge sheet (Ext. Ka-18)under sections 376, 302 and 201 I.P.C on 2.5.2012. The report of the Forensic Laboratory Agra dated11.7.2012 disclosed that no blood was found on the haircollected from between the fingers of the deceased (item 1),the hair cut from the accused-appellant (item 2), the haircollected from the room (item 4), from the cut hair of thedeceased (item 5), from the slide made at the time of postmortem (item 6), and broken slide collected from theappellant (item 7) and underwear of appellant (item 8) andKurta of the deceased (item 10). The hair collected frombetween the fingers of the deceased(item.1) and the hair cutfrom the accused appellant (item 2) were found to be ofhuman origin but on their comparison, no affirmative opinioncould be given. However, the hair which were found in theroom (item 4) and the hair of the deceased which were cut bythe doctor at the time of autopsy (item 5) were also found tobe of human origin and on comparison and analysis, theyappeared to be similar. No semen was found on the slide collected from the deceased (item 6) and the broken slide collected from the appellant (item 7) and on the underwear of the deceased (item 8), Salwar of the deceased (item 9) and Kurta of the deceased (item 10). No semen was found on the slide collected from the deceased (item 6) and the broken slide collected from the appellant (item 7) and on the underwear of the deceased (item 8), Salwar of the deceased (item 9) and Kurta of the deceased (item 10). Charges were framed against the appellant unde sections 302 , 376 I.P.C and 201 I.P.C on 29.20.2012 for having committed rape and murder of the 12 year old deceased Noorunnisha and for trying to conceal the evidence regarding the murder by removing the dead body from the room to save himself from punishment. Apart from the three formal witnesses PW-3 Dr. Amit Kumar, PW-4 Constable Parul Yadav and PW-5 Inspector Ashok Kumar Singh, whose roles have been mentioned above, two witnesses of fact PW-1 Baise Ali, father of deceased Noor-un Nisha and informant of this case and PW-2 Afzal have been examined in this case. PW-1 Baise Ali has deposed that as usual on the date of incident, the deceased Noor-un Nisha had gone for grazingbuffaloes at about 8.00 a.m. in the vacant plot near theirhouse. She would normally return by 4 or 5 P.M, but when shedid not return till 5.00 p.m on the date of incident, then PW-1Baise Ali accompanied by PW-2 Afzal, Islam,Najruddin andBaisan went in the direction of Sapra Guest House to searchfor the deceased. When they reached near the house ofappellant Akhtar, they found him throwing the dead body outside. They apprehended the appellant Akhtar and they tookhim to the police station. The informant dictated the report toRashid out side the police station (ext. Ka 1) to which he appended his thumb impression. 14. PW-2 Afzal deposed that the daughter of Baise Ali had disappeared about 8-9 months prior to the deposition. In the morning she had gone to graze her buffaloes but when she did not return in the evening, even though the buffaloes had returned then this witness along with four others went to search for Noor-un Nisha. When they were returning aftersearching near the Sapra Guest House, they saw the appellantAkhtar catching hold of the deceased by her hair and pullingher out from his house. Then an alarm was raised and theappellant was apprehended. Noor-un Nisha was found dead.The persons apprehending Akhtar took him to the policestation. When they were returning aftersearching near the Sapra Guest House, they saw the appellantAkhtar catching hold of the deceased by her hair and pullingher out from his house. Then an alarm was raised and theappellant was apprehended. Noor-un Nisha was found dead.The persons apprehending Akhtar took him to the policestation. At the police station, the appellant is said to haveadmitted to his guilt for committing rape and murder of thedeceased in the presence of 4-5 persons, who were present atthe police station. He claims to have been overcome by aspirit (jinn) which caused him to commit the crime. Defence of the appellant 15. In his 313 Cr.P.C statement the appellant took the pleathat the witnesses had falsely deposed against him and that afalse document had been prepared and he had been falselyimplicated by the public. He further stated that the place ofincident was near his shop and house. He was sitting at hisshop as was his daily routine. His family members had gonehome. In the evening as per his usual practice, he had gonefor prayers at the nearby Barey Wali mosque and hadreturned to his shop. In the mosque, an announcement wasalso made on the loudspeaker that a girl had gone missingand the people had collected and there was a jam on theBudaun bye-pass. The dead body was found near the house ofthis appellant. The police wrongly apprehended him becauseof which the appellant was locked up and falsely implicated bythe informant in this case. The appellant has also examinedfive witnesses in his defence. 16. DW-1 Mohammad Sharif, is a Junior Engineer of thePower Division Buduan. He stated that there was no light onthe date of incident until 9.00 p.m. 17. DW-2 Hazi Rahmat Husain, has deposed that theappellant had offered evening prayers at the Bare Wali Masjid,where he kept a stall. 18. DW-3 Hafiz S. Ahmad, who had also given the same evidence of the appellant offering evening prayers at the mosque. 19. DW-4 is Netrpal who states that the appellant had a shop, where auto mobile parts were sold. His house was adjoining the shop. The appellant had a good character and used to offer prayers. The deceased had left her house and she was found at 9.00 p.m in the plot behind the house of the appellant. The police had picked him up from his shop in the presence of this witness. 20. DW-5 Mujahid Husain. His house was adjoining the shop. The appellant had a good character and used to offer prayers. The deceased had left her house and she was found at 9.00 p.m in the plot behind the house of the appellant. The police had picked him up from his shop in the presence of this witness. 20. DW-5 Mujahid Husain. has also deposed that the appellant used to offer prayers in Barey Wali Masjid. On the date of incident, he had returned after offering prayers at 6.30 p.m to his shop and parked his cycle at his shop, and after evening prayers he left with this cycle. Defence and steps taken by this Court for DNA analysis of samples of hair collected from the deceased, accused and spot 21. When the bench consisting of one of us (Amar Saran J)and Mrs. Sunita Agarwal, J were hearing this appeal on 23.10.13 on a perusal of the forensic laboratory report and post-mortem report, we found that even though the doctor who conducted the post-mortem examination had collected the sample of hair from the head of the deceased and some hair were found in the room of incident which was said to have been pointed out by the appellant, the two sets of hair are said to have been shown to be similar as per physical and microscopic examination. But no DNA test was conducted on the two sets of hair. Also as no affirmative evidence of their similarity could be given by the Forensic Laboratory report on comparison of the hair found between the fingers of thedeceased, and the hair cut from the head of the appellant, hence we decided to have a look at the condition of the material and called for the said material which may have been deposited in the Malkhana or elsewhere, through the CJM Budaun on the next date of listing, i.e. 29.10.2013. 22. On 29.10.2013, Constable Santosh Kumar Singhproduced two bundles containing material exhibits which werebrought from the Malkhana. The said bundles were opened inpresence of learned counsel for the appellant and the learnedA.G.A and the seal was found intact. In one bundle, thematerial exhibit was kept in a plastic box which contained hairwhich was found between the fingers of the deceased Noor-unNisha (item 1 of the Forensic laboratory report), which was resealedand marked HC 3. The said bundles were opened inpresence of learned counsel for the appellant and the learnedA.G.A and the seal was found intact. In one bundle, thematerial exhibit was kept in a plastic box which contained hairwhich was found between the fingers of the deceased Noor-unNisha (item 1 of the Forensic laboratory report), which was resealedand marked HC 3. The second material exhibit was thehair found at the spot pointed out by the appellant (item 4 ofthe Forensic laboratory report), which was re-sealed andmarked HC 2. The third material exhibit kept in a brownenvelope wrapped in a white paper contained the hair of thedeceased taken by the doctor who conducted the postmortem which was earlier described as item 5 in the Forensiclaboratory report which was re-sealed and marked as HC 1.These three material exhibits were kept in separate bundleswhich were assigned fresh HC numbers by us as mentionedabove. We also examined material exhibits (mentioned atitem nos. 2 and 3) in the Forensic Laboratory report whichwere the hair and blood of accused Akhtar which werecollected by Dr. R.K. Singh. However, as the said sampleswere not found in a good condition and further the said doctorwas also not examined to prove the said sample, we directedthat a fresh sample of the hair of the appellant be got cut bythe Jail Doctor in presence of the Jail Authorities and Judicial Officers which were directed to be produced before this Court on 14.11.2013. We also directed that the evidence of the Jail Doctor and Jail authorities in whose presence the hair of the appellant was cut as also the judicial Magistrate in whose presence the samples were taken be recorded and their affidavits under section 296 Cr.P.C be also taken and forwarded to this court. 23. Pursuant to our order dated 29.10.2013, samples of hairof the appellant were received from District Jail Budaun whichwe directed to be kept in a separate envelop which wasmarked as HC-4. 24. We then passed an order on 14.11.13 directing that thecut hair of the appellant kept in a sealed bundle (HC 4), beforwarded to the Director, Centre for DNA Fingerprinting andDiagnostics (CDFD) Hyderabad along with the hair foundbetween the fingers of the deceased (HC-3) for DNAcomparison. We also directed that the hair of the deceasedwhich was collected by PW-3 Dr. 24. We then passed an order on 14.11.13 directing that thecut hair of the appellant kept in a sealed bundle (HC 4), beforwarded to the Director, Centre for DNA Fingerprinting andDiagnostics (CDFD) Hyderabad along with the hair foundbetween the fingers of the deceased (HC-3) for DNAcomparison. We also directed that the hair of the deceasedwhich was collected by PW-3 Dr. Amit Kumar who conductedthe autopsy (HC 1) and the hair purportedly of the deceasedfound at the place of incident, (HC-2) be also forwarded forDNA comparison to CDFD, Hyderabad. The affidavit andreports of Jagdish Prasad Deputy Jailer, Budaun, Umesh Singh,Jail Superintendent and Dr. A.K. Gupta were filed and taken onrecord to be treated as part of the evidence under section 296Cr.P.C. We had sought a report from CDFD within threeweeks. 25. Pursuant to our order dated 14.11.2013, letter of CDFDdated 21.11.2013 and report of CDFD Hyderabad dated3.12.2013 were placed before us on 10.12.2013. On12.12.2013, we directed that Expert Dr. Devinder Kumar, whohad prepared the DNA report be present in Court on27.1.2014. We also directed the CJM Budaun to ensure thepresence of accused Akhtar who was detained in District JailBudaun on the said date so that the evidence of Expert Dr.Devindra Kumar could be put to the accused and Dr. DevinderKumar could be examined in the presence of the accused. 26. As in his earlier examination under section 313 Cr.P.Cthe entire evidence was compositely put to the accused, andhis attention was not specifically drawn to the circumstancesagainst him we also directed the learned GovernmentAdvocate to prepare a draft of questions in Hindi for thebenefit of the Court which were to to be put to the accusedunder section 313 Cr.P.C and which were also to be sharedwith the counsel for the accused. We may point out here thatsuch a course has been permitted under the newly introducedsection 313 (5) Cr.P.C, which is in force from 31.1.2009 videAct No. 5 of 2009. 27. The case was thereafter, directed to be listed on 27.1.2014. Evidence of Technical Examiner on DNA report and re-examination of appellant in this case 28. On that date, the Technical Examiner Dr. DevinderKumar and the accused appellant Akhtar were present. Thematerial exhibits and documents relating to the case were putto the Technical Examiner Dr. Devinder Kumar, who gave hisevidence in court in presence of the accused and his counselSri G.S. Chaturvedi, who also cross-examined the expert. 29. On that date, the Technical Examiner Dr. DevinderKumar and the accused appellant Akhtar were present. Thematerial exhibits and documents relating to the case were putto the Technical Examiner Dr. Devinder Kumar, who gave hisevidence in court in presence of the accused and his counselSri G.S. Chaturvedi, who also cross-examined the expert. 29. We also examined Ashok Kumar, who carried thematerial exhibit as C.W.1. We then examined the accusedunder section 313 Cr.P.C on the additional evidence withregard to the D.N.A test carried out by Dr. Devinder Kumarand also put to him the detailed circumstances whichappeared in the evidence against him, for preparation ofwhich we had taken the assistance of the G.A., as mentionedabove, and which had also been furnished to the counsel forthe accused for seeking his objections or clarifications. 30. It may be noted that learned counsel for the appellanthas not objected to the putting of detailed questions to theaccused-appellant, under section 313 Cr.P.C on 27.1.2014However learned counsel for the appellant has objected tosome questions in the cross-examination and under section313 Cr.P.C which refer to admissions made by the appellantbefore the police, such as the admission that he hadcommitted the rape because he had lost control of his sensesand was overcome by a "jinn" and we may clarify here thatwe have eschewed consideration of those admissions forreaching a decision on the merits of this case. 31. The report of the D.N.A expert and the evidence of Dr.Devinder Kumar disclosed that the source of Exhibit E (hairmarked as HC-3 by the High Court labeled as HC X which wastaken from the palm of the deceased) yielded DNA profile ofmale origin and was matching with the DNA profile of thesource of exhibit A (a bunch of cut hair from the scalp ofaccused Akhtar) which was marked as HC-4 by the High Court.The source of exhibit C (hair cut from the deceased labeled asHC-1 by the High Court in the packet labeled as HC-X) andexhibit D (hair said to be found on the crime scene) which wasmarked as HC-2 in the packet labeled as HC X. The examinerdeposed that he had been allotted 60 D.N.A. cases, of which,he had submitted reports in around 30 cases. The conclusionin his report was also based on some additional data, which hewas carrying in CDFD file No. 2768, which containedgenotyping results in the form of Electropherogram. The conclusionin his report was also based on some additional data, which hewas carrying in CDFD file No. 2768, which containedgenotyping results in the form of Electropherogram. Aslearned counsel for the appellant wanted the entire additionaldata to be placed on the record, we directed accordingly, andthe expert Devinder Kumar produced the same, which weretaken on record. It may be noted that no criticism has beenraised by the learned Senior counsel regarding the quality ofthe DNA examination by Dr. Devinder Kumar of the CDFD.Arguments of counsel for defence 32. The contentions of Sri G.S. Chaturvedi as mentioned inhis arguments and in his written submissions were that thebasic evidence in this case was only that the accused hadbeen caught disposing of the body near his house at about6.00 p.m. This evidence appeared to be false because PW-1Baise Ali had given conflicting evidence at different points inhis examination and cross examination. He had further statedthat he searched for his daughter the whole night and even aloudspeaker announcement was made regarding thedisappearance of the daughter which would render false theevidence of the accused having been apprehended when hewas throwing the dead body at 6.00 p.m. It was suggestedthat actually the body was recovered at about 9 or 9.30 p.mnear the house of the appellant and he was implicated by thepolice, only to show the case as solved because of the outcryraised by the general public and politicians. The allegedrecovery of hair from the fingers of the deceased was falseand baseless as it was a recovery from an open place in thepresence of 100-200 persons who may have touched thebody, so it was highly improbable that the scalp hair of theappellant were recovered from the fingers of the deceased. 33. It was further argued that the investigation and recoverywas unreliable and doubtful as only two relation eye witnessesPW-1 Baise Ali and PW-2 Afzal had been examined and noother independent eye witness has supported the prosecutionversion and only to complete the chain of evidence, the I.Ohad taken the hair of the appellant at the police station andthe same was shown to have been recovered from the fingersof the deceased Noor-un Nisha and from the bed of theappellant. There were contradictions inasmuch as according tothe FIR, and the 161 Cr.P.C statements, it was mentioned thatthe deceased had left her house with cattle in the afternoon,but during the trial PW-1 and PW-2 stated that the deceasedhad left her home in the morning. It was further argued thatthe FIR was lodged at 8.15 p.m i.e. after a delay of 2 hours ofthe recovery of the dead body and from the statement of PW-1 and PW-2 it could be inferred that the FIR was lodged priorto the recovery of the dead body which was impossible. Adoubt was raised regarding the reliability of the DNA report asit was contended that recovery of the hair from the fingersand palm of the deceased by the I.O was doubtful, hence theircorrespondence with the hair taken from the appellant whilsthe was in jail after the order of this Court could not improvethe case of the prosecution. It was further submitted that theFIR and statements of witnesses under section 161 Cr.P.C andother documents including the D.N.A report reveal that aftersending the dead body for autopsy, all other formalities werecompleted which shows the false implication of the appellantin this offence. Arguments for Prosecution 34. Learned Government Advocate on the other hand filedwritten arguments and submitted that there were sufficientcircumstances for connecting the appellant with this incidentwhich conclusively established that the appellant and noneother had committed the crime. The deceased had left herhouse in the noon of 4.4.2012 and when she did not returnback as per her daily routine, a search was made by PW-1 andPW-2 and others and at about 6.00 p.m. they caught theappellant red handed near his house whilst throwing out thedead body of the deceased Noor-un Nisha. The FIR wassubsequently lodged by PW-1 Baise Ali. The appellant washanded over to the police by the informant at the time oflodging of the FIR. Even at the time of inquest, some hair werefound on the palm and between the fingers of the deceasedwhich were collected and duly sealed by the I.O. During thecourse of investigation, pursuant to the disclosure statementof the appellant, the I.O also recovered some hair from theplace of incident, i.e. the bed (Diwan) inside the room ofhouse of the appellant. PW-3 Dr. PW-3 Dr. Amit Kumar, who conductedthe postmortem on the body of the deceased had also cut andpreserved the sample of hair of the deceased which talliedwith the hair found on the bed and in the room whose keyswere in the custody of the appellant and who had led thepolice and witnesses to the room, which was the scene of thecrime. The prosecution case could be established by PW-1 andPW-2 in Court, who had absolutely no motive for falselyimplicating the appellant. No suggestion was even givenregarding any enmity of these witnesses with the appellant.The witnesses did not even know the parentage of thisaccused prior to the incident. The contradictions pointed outby learned counsel for the appellant were minor in nature onthe basis of which, the entire prosecution case could not bediscarded. So far as the contention regrading variation in thetime in the statement of PW-1 as pointed by learned counselfor the appellant was concerned, it was stated that this wholeargument has been built on a sentence appearing in thedeposition of PW-1 that at about 8 or 9 p.m on the date ofincident the persons of the locality had blocked the road dueto non recovery of the victim. In the present case, the FIR waslodged at 8.15 p.m and even the inquest started at 9.00 p.m.The time of inquest as stated by PW-5 SI A.K. Singh I.O has notbeen challenged by the appellant. The appellant was handedover to the police at the time of lodging of the FIR. PW-4 ParulYadav who was a member of the police team at the time ofinquest proceedings has proved the inquest proceedings.Since the time of inquest on the cadaver has not beendisputed by the appellant as such, it was apparent from theevidence on record that the time given by the PW-1 was dueto an inadvertent mistake. PW-1 was an illiterate rustic, whomay have been confused about the time. The observations ofthe trial judge in this connection that variations of time couldnot be accepted at its face value because it was a result of aslip of tongue, was in order. Even if there were anydeficiencies in the investigation, it was contended, that couldnot be a ground for discarding the prosecution evidence whichwas authentic, credible and cogent. The observations ofthe trial judge in this connection that variations of time couldnot be accepted at its face value because it was a result of aslip of tongue, was in order. Even if there were anydeficiencies in the investigation, it was contended, that couldnot be a ground for discarding the prosecution evidence whichwas authentic, credible and cogent. So far as the argument oflearned counsel for the appellant regarding ante-timing of theFIR was concerned, it is submitted that no suggestionsregarding it was given to the I.O that the FIR was ante-timedas the I.O immediately proceeded to the spot and evenstarted the inquest proceedings at 9.00 p.m. The medicalevidence corroborates the allegation of throttling and rape ofthe victim. The forensic report of the Agra Forensic ScienceLaboratory indicated that the hair of deceased preserved bythe doctor at the time of postmortem were found similar inlength, thickness and on the basis of microscopic compositionto the hair collected from the scene of the crime. This fact hasbeen further confirmed by the DNA report of CDFD Hyderabadwhich was proved by CW-1 Dr. Devinder Kumar before thisCourt. The D.N.A report of CDFD, Hyderabad further indicatedthat the hair found between the fingers of the deceased andthe sample of the head hair of the appellant, collected by thejail authorities, on this Court's order were from the sameindividual. The contents and conclusion of this report cannotbe doubted and have to be accepted as scientifically accurateand based on an exact science. 35. Regarding the appellant having been caught red handedwhile disposing of the dead body of the deceased near hishouse it was argued by learned GA that it has not beenexplained by the appellant as to how the dead body came inhis possession either by way of a suggestion in the crossexamination or in his statement recorded under section 313Cr.P.C. Also pursuant to the disclosure statement of theappellant, the hair of the deceased were found at the place ofincident i.e. the room with a bed (divan) on the upper floor ofthe house of the appellant on his pointing out. No explanationhas been given by the appellant as to how the said hair werelying in his house. This fact was only within his specialknowledge, and the onus under section 106 of the EvidenceAct fell on the appellant to explain how the hair of thedeceased were present on the divan and room of his house ofwhich he had custody. No explanationhas been given by the appellant as to how the said hair werelying in his house. This fact was only within his specialknowledge, and the onus under section 106 of the EvidenceAct fell on the appellant to explain how the hair of thedeceased were present on the divan and room of his house ofwhich he had custody. Regarding the fact that the hair foundat the place of incident and the sample of the hair of thedeceased having been found similar in the Agra forensic testand also as per the D.N.A report by the CDFD, Hyderabad, thehair found between the fingers of the deceased and thesample of the hair taken from the appellant in jail pursuant toour order being of the same individual, the appellant couldgive no explanation except by making a suggestion in ananswer in his re-examination under section 313 Cr.P.C beforethis Court, that the hair between the fingers of the deceasedhad been planted by the police, but no suggestion in thisregard was even given to the I.O. Considering the gravity ofthe crime of rape and murder of a minor child, learnedGovernment Advocate submits that there was no immediateextreme mental or emotional disturbance or provocation tothe appellant for committing the crime and the case fallswithin the purview of the rarest of rare cases calling for thedeath penalty. 36. Both the counsel for the parties have cited case lawwhich would be considered at the appropriate stage. Analysis of contentions of learned counsel for theparties and evidence. 37. The basic contention of the learned counsel for theappellant was that the claim of the witnesses that theappellant had been caught hold of at about 6.00 p.m when hewas throwing the dead body of the deceased Noor-un Nishaoutside his house was unreliable. In fact the dead body hadbeen found lying on the spot and only to show the case assolved because of public and political out cry, the police hadfalsely implicated the appellant in this case. Learned counselfor the appellant tried to support this argument by contendingthat PW-1 Baise Ali in his cross examination has stated thatwhen the deceased Noor-un Nisha did not return till 5 or 6 pmin the evening, a search was made for her, by which time itbecame late and lights were lit in the houses. A rickshaw witha loudspeaker made an announcement that Baise Ali'sdaughter had not returned and that she be searched. A rickshaw witha loudspeaker made an announcement that Baise Ali'sdaughter had not returned and that she be searched. It wasargued that in this background the apprehension of theappellant when he was throwing the corpse outside his housewas unlikely. 38. Even if it is accepted for the sake of arguments that thedefence has succeeded in raising a small doubt, as to whetherthe appellant could indeed have been arrested at the verymoment when he was throwing the dead body, and that theappellant might have been linked with this crime after thecorpse was found lying outside his house. But there are othersignificant features in this case, which dispel any suspicion inour mind that anyone other than the appellant wasresponsible for the crime. 39. There appears to be substance in the learned AGA'ssubmission that the description of time of apprehension of theappellant as about 6 pm when he was throwing the cadaverappears to be an error on part of the rustic witness, who maynot have had a clear idea about the time. 40. Furthermore If the appellant was not arrested when hewas throwing the cadaver, the police could not haverecovered the broken bangles and hair of the deceased fromthe room in that house, (which showed the room to be theplace of incident), when the police were taken there by theappellant after he was handed over at the police station byPWs 1 and 2, Baise Ali and Afzal. The appellant's house couldnot have been identified as the house where the crime hadtaken place, as there were a large number of houses nearpoint 'A' on the site plan (Ext. Ka 16), where the cadaver wasfound. Thus the plots of Shakil, the house of Ashok Pasi,Sapera Guest house, and the houses of Negcha and Dhichuand also the appellant Akhtar have been shown in the siteplan as being near the point 'A.' Furthermore in his crossexaminationPW 1 Baise Ali admits that there were 500 to 600houses between his house and Sapera Guest house. 41. No doubt only PW 5, A.K. Singh, inspector, and PW 4,female constable Parul Yadav have been produced in Court toprove the discoveries of the broken bangle pieces and hairfrom the Divan and "bistar" (bedding) and the floor to theSouth of the "divan" where they were taken by the appellant,which were collected and sealed and shown as Ext. Ka 14 inthe recovery memo. Ka 14 inthe recovery memo. The prosecution has even failed toexamine the two witnesses of recovery, Nathu and Sayyar Ali,(who signed the recovery memo along with the appellant). butthe I.O., PW 5 A.K. Singh has proved the discovery of the roomat the instance of the appellant where the broken bangles andhair of the deceased were lying. The recovery memo alsobears the signatures of the I.O., PW 5 A.K. Singh and theappellant (along with the two non-produced witnesses). 42. We also think that it would be wrong not to place reliance on the testimony of the the Police witnesses PW 5 AK Singh, or PW 4 Constable Parul Yadav, who have proved the inquest report and the recoveries only because the independentprosecution witnesses of recovery have not been examined.Though no doubt it would have been better, if the trial Courthad made efforts for examining the independent recoverywitnesses, Nathu and Sayyar, but merely in view of their nonexamination,the testimony of the police witnesses who haveproved the recovery ought not to be discarded. The Court maypresume that official and judicial acts have been regularlyperformed in view of section 114 (e) of the Evidence Act,although the requirement in law is only that statements ofpolice witnesses need to be scrutinized carefully before theCourt can act upon them and in appropriate casescorroboration in material particulars may be sought. Certainlythere is no rule that police testimony must invariably bediscarded as they were interested in proving the prosecutioncase. 43. The law on this point has thus been reiterated recently in Gian Chand v. State of Haryana, (2013) 14 SCC 420 , in paragraph 32 at page 432 as follows : "32. In Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434 this Court considered the issue at length and after placingreliance upon its earlier judgments came to the conclusionthat where all witnesses are from the Police Department, theirdepositions must be subject to strict scrutiny. However, theevidence of police officials cannot be discarded merely on theground that they belong to the police force, and are eitherinterested in the investigating or the prosecuting agency.However, as far as possible the corroboration of theirevidence on material particulars should be sought. However, theevidence of police officials cannot be discarded merely on theground that they belong to the police force, and are eitherinterested in the investigating or the prosecuting agency.However, as far as possible the corroboration of theirevidence on material particulars should be sought. The Courtheld as under: "Thus, a witness is normally considered to beindependent, unless he springs from sources which arelikely to be tainted and this usually means that the saidwitness has cause, to bear such enmity against theaccused, so as to implicate him falsely. In view of theabove, there can be no prohibition to the effect that apoliceman cannot be a witness, or that his depositioncannot be relied upon." (See also Paras Ram v. State of Haryana, (1992) 4 SCC 662 , Balbir Singh v. State, (1996) 11 SCC 139 , Akmal Ahmad v. State of Delhi, (1999) 3 SCC 1315, M. Prabhulal v. Directorate of Revenue Intelligence, (2003) 8 SCC 449 and Ravindran v. Supt. of Customs, (2007) 6 SCC 410 ) 44. It is also noteworthy here that after Devinder Kumar, theCDFD DNA expert was examined on 27.1.2014 and the fresh313 Cr.P.C statement of the appellant was recorded, anapplication was moved by the learned defence counsel on28.1.14, purportedly under section 233 Cr.P.C, to summonsome witnesses of the recovery of the hair from between thefingers of the deceased, or from the room in custody of theappellant, who were signatories of the recovery memos. Onthe said application an order was passed for summoning IbleHasan, Mukhtiyar, Natthu and Siffar as defence witnesses. On10.2.14 one witness Ible Hasan appeared along with the I.O.But learned defence counsel made an endorsement on theapplication and order sheet on 10.2.14 that he did not want toexamine Ible Hasan. We also found that the defence counselhad not taken steps for obtaining processes for production ofthe defence witnesses. We were therefore of the view that thedisposal of the appeal would be unnecessarily held up, hencewe discharged the I.O. PW 5, Ashok Kumar Singh who waspresent and issued no further production warrant for the otherwitnesses. We also found that the defence counselhad not taken steps for obtaining processes for production ofthe defence witnesses. We were therefore of the view that thedisposal of the appeal would be unnecessarily held up, hencewe discharged the I.O. PW 5, Ashok Kumar Singh who waspresent and issued no further production warrant for the otherwitnesses. This order has not been challenged by the defence.From the failure of the defence to examine Ible Hasan whenhe appeared on 10.2.14 as a defence witness, this Court couldreasonably presume in view of section 114(g) of the EvidenceAct, that the evidence of Ible Hasan if examined, would havebeen unfavourable to the defence, and that even though IbleHasan who was a signatory of the recovery memo (Ext. Ka 6)of the hair found between the fingers of the deceased, had notappeared as a witness, but it is apparent that Ible Hasan doesnot appear to be prepared to give evidence favouring thedefence. In any case the defence can make no capital of thefact that the prosecution has not examined the witnesses ofrecovery, who may not have been interested in gettingembroiled in the matter, even though they had signed therecovery memos, but who do not appear to be interested insupporting the case of the defence either. Police witnesses asmentioned (supra) have given evidence of the recoveries andthere is no good reason to discard their testimony. 45. The witness Baise Ali, PW-1 has specifically denied that he was given information regarding the recovery of the corpse of the deceased. He was also denied the suggestion that in the late evening in order to get the public demonstration ended, he was compelled to lodge the FIR as dictated by his relation. 46. Likewise PW-2 Afzal has also denied the defencesuggestion that at 1.00 a.m in the night when the cadaverwas found in the jungle, then the Jaam (blockade) was endedand after that the police got the report lodged. Also we are ofthe view that if the cadaver had been found in the jungle aswas suggested by this question in cross-examination it wasnot explained by the defence as to how the broken banglesand the hair of the deceased etc. would have been recoveredfrom the appellant's room and how would the room, whichwas the scene of the crime, been located, as the room inquestion could only have been pointed out by the appellant. 47. would have been recoveredfrom the appellant's room and how would the room, whichwas the scene of the crime, been located, as the room inquestion could only have been pointed out by the appellant. 47. Another circumstance which contradicts this suggestionis the fact that inquest on the dead body itself commenced at 9.00 p.m and was concluded at 10.15 p.m. No suggestion was given to the I.O PW-5 Ashok Kumar Singh or to PW-4 Constable Parul Yadav that the inquest had not been carried out at the time alleged. 48. There was some cross examination of PW-2 Afzal on thepoint that in the statement under section 161 Cr.P.C to thepolice, he had stated that the appellant had carried thedeceased on both his hands but in his evidence in court, hestated that the appellant had carried the deceased by herneck and hair. Also we are not prepared to accept thecontention that the FIR was ante-timed, as even though theaccused having been apprehended by the witnesses andpublic at 6.00 p.m, there was no good reason for the reporthaving been lodged after two hours 15 minutes at 8.15 p.mand the said report was therefore written at the instance ofpolice 49. In Sandeep v. State of U.P., (2012) 6 SCC 107 , inparagraph 57 it has been held that minor variations in thetime of registration of the FIR cannot be considered a seriousinfirmity because of some variations in the time mentioned 'bydifferent witnesses, or even for some reasons suggestingalteration of the time, if there was no reason to doubt theregistration of the FIR by the informant, or for holding thatthere was any deliberate attempt to ante-date or ante-timethe FIR by the prosecution. In paragraph 61 it was rightlyobserved in the aforesaid law report: "We have already heldthat the accused miserably failed to substantiate the standthat he was not present at the spot of occurrence whereas hewas really apprehended on the spot by the prosecutionwitnesses and was brought to the police station from whomother recoveries were made. The submission by referring tocertain insignificant facts relating to the delay in the alterationof crime cannot be held to be so very fatal to the case of theprosecution." 50. The submission by referring tocertain insignificant facts relating to the delay in the alterationof crime cannot be held to be so very fatal to the case of theprosecution." 50. However, even if something may be said in favour of theaccused on the basis of these suggestions and arguments,there are certain important and compelling facts in this casewhich unerringly indicate the involvement of the appellantalone in this offence and none else. 51. These irrefutable circumstances are as follows. If theinformant had only picked up the appellant on ground ofsuspicion, there was no question of the appellant having takenthe informant and the police to the room, the keys of whichroom were with his neighbour. After the room was got opened,hair was found lying on the bed and on the floor of that roomwhich was collected by the I.O. This hair as per the Agraforensic laboratory report and the D.N.A report by CDFD,Hyderabad clearly demonstrated that the said hair was thehair of the deceased, as it matched with the hair that PW 3 Dr.Amit Kumar had collected at the time of autopsy. If theappellant had not committed the crime in question, there wasno possibility of the hair of the deceased being present in theroom of his house, and to a specific question being put to theaccused in his detailed 313 Cr.P.C examination on 27.1.2014before this Court as to how the long hair of the deceased andpieces of her red bangles were found in the room and on thebed therein, he simply denied that he was arrested by thepolice. He maintained that the police and the photographerhad gone upstairs, but he has offered no explanation as tohow the hair, and broken pieces of bangles of the deceasedwere found in the upstairs room of his house. 52. Most important the complicity of the appellant in thisoffence is established from the DNA matching of the hairwhich was collected from between the fingers of the deceasedNoor-un Nisha with the hair of the appellant which had beencut and its sample taken on the basis of the earlier bench'sorder dated 29.10.13. Notably the presence of hair in betweenthe fingers of the deceased was noticed even in the inquestreport, which establishes that it was taken in possession bythe police at that stage. Notably the presence of hair in betweenthe fingers of the deceased was noticed even in the inquestreport, which establishes that it was taken in possession bythe police at that stage. The recovery memo of the said hairwas prepared which was marked as Exhibit Ka-11 and whichdescribes the said hair as black and henna coloured whichwere collected in a white paper puriya. The said hair wereproduced before us on 29.10.13 along with some othersamples which were collected. As the previous sample of thehair and blood which were taken from the appellant by Dr.R.K. Singh (who has not been examined), and the hair foundfrom the fingers of the deceased could not be determined tobe of the same person, and the High Court bench had alsofound the bottle and seal on the sample of the hair and bloodcollected from the appellant to be in a damaged condition, thebench had directed that a fresh sample of the appellant's hairbe collected from him at the jail where he was lodged by theorder dated 29.10.13. This was done and the fresh sample ofthe appellant's hair and sample of other materials earliercollected were sent to the CDFD, for a DNA analysis by theorder dated 14.11.2013. 53. It may also be noted that initially the suggestion of thedefence to the I.O was that no hair were recovered frombetween the fingers of the deceased. However there is asomersault from this suggestion when the appellant in his 313Cr.P.C statement before this Court on 27.1.2014, in answer toquestion no.13, suggests that his hair were taken by thepolice at the hospital and the police station, and at this stagea contention has been raised by learned Counsel for theappellant, that the hair was planted by the police between thefingers of the deceased. This belated suggestion andcontention that the police after apprehending the appellant onhis being handed over by the informant and other witnesses,would go to the length of getting his hair immediately cut, andthen put it between the fingers of the deceased before 9 p.m.when the inquest started, is too far-fetched a suggestion,which deserves to be summarily rejected. 54. Also again the appellant somersaults from his answer toquestion no. 13, when in response to question no.33, hestates that the hair which were found between the fingers ofthe deceased were not his hair. 54. Also again the appellant somersaults from his answer toquestion no. 13, when in response to question no.33, hestates that the hair which were found between the fingers ofthe deceased were not his hair. As per the D.N.A report givenby the CDFD Hyderabad laboratory however it was clear thaton DNA matching the hair found between the fingers of thedeceased and the hair taken from the head of the appellanton the High Court's order were of the same person. As held inSantosh Kumar Singh v. State, (2010) 9 SCC 474, that theconclusions of the DNA report cannot be doubted and must beaccepted as scientifically accurate as DNA finger printing is anexact science. In Santosh the trial Court had not relied on theDNA report and held that the vaginal swabs and slides and theblood sample of the accused had been tampered with, andhad relied on some text books for this purpose. The HighCourt and the Supreme Court however held that there was noreliable evidence for suggesting that the sample had beentampered with, and even criticized the trial Court for relyingon text books which were not put to the expert. 55. Recently the same position regarding the value of theDNA profiling has been reiterated in Dharam Deo Yadav v.State of U.P., (2014) 5 SCC 509 , wherein, modern forensictechniques for criminal investigations such as DNA profilinghave been lauded, because of reliable witnesses failing to givetestimony, or turning hostile due to intimidation, though it isconceded that the DNA testing may in a particular case not becent percent accurate, as that would depend on the quality ofthe analysis and whether the sample collected was kept freefrom contamination. Thus the law report observes inparagraph 30: "30. The criminal justice system in this country is atcrossroads. Many a times, reliable, trustworthy, crediblewitnesses to the crime seldom come forward to depose beforethe court and even the hardened criminals get away from theclutches of law. Even the reliable witnesses for theprosecution turn hostile due to intimidation, fear and host ofother reasons. The investigating agency has, therefore, tolook for other ways and means to improve the quality ofinvestigation, which can only be through the collection ofscientific evidence. Even the reliable witnesses for theprosecution turn hostile due to intimidation, fear and host ofother reasons. The investigating agency has, therefore, tolook for other ways and means to improve the quality ofinvestigation, which can only be through the collection ofscientific evidence. In this age of science, we have to buildlegal foundations that are sound in science as well as in law.Practices and principles that served in the past, now peoplethink, must give way to innovative and creative methods, ifwe want to save our criminal justice system. Emerging newtypes of crimes and their level of sophistication, thetraditional methods and tools have become outdated, hencethe necessity to strengthen the forensic science for crimedetection. Oral evidence depends on several facts, like powerof observation, humiliation, external influence, forgetfulness,etc. whereas forensic evidence is free from those infirmities.Judiciary should also be equipped to understand and deal withsuch scientific materials. Constant interaction of Judges withscientists, engineers would promote and widen theirknowledge to deal with such scientific evidence and toeffectively deal with criminal cases based on scientificevidence. We are not advocating that, in all cases, thescientific evidence is the sure test, but only emphasising thenecessity of promoting scientific evidence also to detect andprove crimes over and above the other evidence." 56. In the aforesaid law report where the skeleton of thedeceased a female from New Zealand was exhumed from thehouse of the appellant after a year of its burial there on thepointing out of the appellant and all the skin had evendisappeared by then, it was observed that as the humerus andfemur bones corresponded biologically with the blood sampleof her father, it was held sufficient for establishing the identityof the deceased, looking to the specialized skill of the DNAanalysts and the laboratory (CDFD, Hyderabad), which hadcarried out the DNA analysis in that case. In the present casealso the DNA analysis was carried out by the same CDFD,Hyderabad on our orders, and no reasons were suggested bythe learned counsel for the appellant for showing why thereport could not be relied upon. 57. With this DNA affirmation that the hair of the appellantwas the same as the hair found between the fingers of thedeceased, this identify cannot be explained on thecontradictory stances on this aspect in the defencesuggestions to witnesses and in his answers given to thequestions put under section 313 Cr.P.C. statements before thelower Court and this Court. 58. 57. With this DNA affirmation that the hair of the appellantwas the same as the hair found between the fingers of thedeceased, this identify cannot be explained on thecontradictory stances on this aspect in the defencesuggestions to witnesses and in his answers given to thequestions put under section 313 Cr.P.C. statements before thelower Court and this Court. 58. The other factor which is also unexplained by thedefence is as to how the hair of the deceased would havebeen present in the appellant's top floor room whose keyswere provided by the appellant to the police. It would again betoo far-fetched to suggest that the police might have cut thehair of the deceased and placed it in the room and on the bed(divan). Cumulatively these two circumstances, i.e. thepresence of the hair and the broken red bangles of thedeceased in the appellant's room and on the bed therein,which was got opened by the appellant, and the presence ofthe hair of the deceased between the fingers of the deceased,which indicate a possible struggle by the deceased who mayhave pulled his hair to save herself are overwhelming innature which establish the involvement of the appellant in thisoffence in a clinching manner. 59. We should also keep in mind that when the incident tookplace, the appellant was not even known to the informant PW291 and the other witness Afzal and the informant states that hedid not even know his name from before, nor even his father'sname. Hence clearly the appellant had not been picked up onaccount of any enmity. In fact there was no reason for thefalse implication of the appellant. Hence clearly the appellant had not been picked up onaccount of any enmity. In fact there was no reason for thefalse implication of the appellant. These are all reasons forconcluding that the recovery of the hair of the deceased andher broken bangles from the appellant's upstairs room, andalso the appellant's hair from between the fingers of thedeceased were genuine recoveries, and which in conjunctionwith the CFL and DNA examinations, regarding which theappellant could offer no satisfactory explanation, clearlyestablish the complicity of the appellant in this crime, and aresufficient for dispelling any iota of doubt, which have beenraised on the bases of the basis of some minor contradictionsand suggestions given by the deceased that the FIR waslodged belatedly at 8.15 p.m., when the appellant after beingarrested was handed over to the police at about 6 p.m., andthus was a product of police advice, or some suggestionsabout a loudspeaker information having been circulated aboutthe deceased girl having gone missing in the evening or aboutthe road block by the agitating public, which continued till lateat night. It has been rightly observed in State of U.P. v.Krishna Master and others, (2010) 12 SCC 324 and State ofU.P. v. Anil Singh, 1988 Supp SCC 686 that if the evidenceread as a whole has a ring of truth, then discrepancies,inconsistencies, infirmities or deficiencies of a minor naturenot touching the core of the case cannot be a ground forrejecting the evidence. The contentions of the defence cantherefore not displace the inferences that are to be drawnfrom the strong material incriminating circumstances thathave been elicited in this case for connecting the appellantwith the crime. We are therefore left without a scintilla of doubtregarding the complicity of the appellant in this offence andthat the appellant and the appellant alone could havecommitted this crime, on all the criteria for judging a case onthe basis of circumstantial evidence. Question of Appropriate sentence and imposition of life imprisonment to run for the appellant's whole natural life in place of death sentence 61. The final question for consideration in this case iswhether it would be appropriate to confirm the sentence ofdeath awarded to the appellant or whether a sentence of lifeimprisonment would be more appropriate in thecircumstances. 62. Question of Appropriate sentence and imposition of life imprisonment to run for the appellant's whole natural life in place of death sentence 61. The final question for consideration in this case iswhether it would be appropriate to confirm the sentence ofdeath awarded to the appellant or whether a sentence of lifeimprisonment would be more appropriate in thecircumstances. 62. The Constitutional bench decision, Bachan Singh vs.State of Punjab, (1980) 2 SCC 684 which was even cited bythe trial judge, the Apex Court has enjoined giving importanceto the antecedents of the prisoner, apart from the gravity ofthe crime, for reaching the conclusion whether only a deathsentence was appropriate. One important mitigatingcircumstance to be taken into account was whether theaccused had a previous criminal history, or whether there wasany material to suggest that his reform was wholly improbableand that he was likely to commit such crimes in the future.However except referring to the sensational and dastardlynature of the crime, the trial judge does not appear to haveconsidered these factors. 63. In somewhat similar circumstances, in Amit v State ofU.P., (2012) 4 SCC 107 , where a 3 year old girl had beenmurdered by a 28 year old man, the Court converted asentence of death to a sentence of life imprisonment, to runfor the whole life of the prisoner, as he had no criminalantecedents, and it was not likely that the accused wouldrepeat the offence. Thus it was mentioned in the decision inpara 22: "In the present case also, we find that when theappellant committed the offence he was a young personaged about 28 years only. There is no evidence to showthat he had committed the offences of kidnapping, rape ormurder on any earlier occasion. There is nothing onevidence to suggest that he is likely to repeat similarcrimes in future. On the other hand, given a chance he mayreform over a period of years. Hence, following thejudgment of the three-Judge Bench in RameshbhaiChandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC764 we convert the death sentence awarded to theappellant to imprisonment for life and direct that the lifesentence of the appellant will extend to his full life subjectto any remission or commutation at the instance of theGovernment for good and sufficient reasons." 64. In Raju v State of Haryana, (2001) 9 SCC 50 , theappellant had committed the rape and murder of the 11 yearold deceased after enticing her with toffees. In Raju v State of Haryana, (2001) 9 SCC 50 , theappellant had committed the rape and murder of the 11 yearold deceased after enticing her with toffees. On his arrest, hisshirt and and pant had bloodstains and his underwear hadblood and seminal stains. The accused gave no explanation ofthe blood stains. The Supreme Court held that the as theappellant appeared to have acted without premeditation ingiving two brick blows to the deceased after she threatened toexpose him, and had no criminal antecedents, and it could notbe concluded that he would be a danger to society, thesentence of death awarded by the Courts below be commutedto a sentence of imprisonment for life. 65. In Amrit Singh v. State of Punjab, (2006) 12 SCC 79 ,where a 6 or 7 year old child was raped and murdered by the31 year old accused, the Apex Court had converted thesentence of death to life imprisonment holding that this wasnot the rarest of rare case and the crime may have beencommitted because of a momentary lapse, on part of the theaccused on the seeing the girl at a secluded place, and thedeceased may have been gagged inadvertently, without anyintention to kill her. Paragraphs 21 and 22 of the law reportread: "21. The opinion of the learned trial Judge as also theHigh Court that the appellant being aged about 31 yearsand not suffering from any disease, was in a dominatingposition and might have got her mouth gagged cannot beheld to be irrelevant. Some marks of violence not only onthe neck but also on her mouth were found. Submission ofMr. Agarwal, however, that the appellant might not have anintention to kill the deceased, thus, may have some force.The death occurred not as a result of strangulation butbecause of excessive bleeding. The deceased had bleedhalf a litre of blood. Dr Reshamchand Singh, PW 1 did notstate that injury on the neck could have contributed to herdeath. The death occurred, therefore, as a consequence ofand not because of any specific overt act on the part of theappellant. 22. Imposition of death penalty in a case of this nature, inour opinion, was, thus, improper. Even otherwise, it cannotbe said to be a rarest of rare cases. The manner in whichthe deceased was raped may be brutal but it could havebeen a momentary lapse on the part of the appellant,seeing a lonely girl at a secluded place. 22. Imposition of death penalty in a case of this nature, inour opinion, was, thus, improper. Even otherwise, it cannotbe said to be a rarest of rare cases. The manner in whichthe deceased was raped may be brutal but it could havebeen a momentary lapse on the part of the appellant,seeing a lonely girl at a secluded place. He had nopremeditation for commission of the offence. The offencemay look heinous, but under no circumstances, can it besaid to be a rarest of rare cases." 66. In Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC 764 there was a difference of opinion of thetwo Judges who had heard the case on the sentence to beawarded. Accordingly the matter was referred to a largerBench which observed that as the accused was about 27years of age who had raped and killed a child studying in aschool in Class IV, but as there was no finding regarding thepossible reformation and rehabilitation of the appellant andthe possibility of his becoming a useful member of societyon being given the opportunity, hence the proper course inthe case would be to substitute the sentence of death witha sentence of imprisonment for life subject to remissionsand commutation at the instance of the Government forgood and sufficient reasons. Paragraphs 9 and 10 of the lawreport at SCC page 767, read as follows: "9. Both the Hon'ble Judges have relied extensively onDhananjoy Chatterjee case, (1994) 2 SCC 220 . In thiscase the death sentence had been awarded by the trialcourt on similar facts and confirmed by the Calcutta HighCourt and the appeal too dismissed by this Court leadingto the execution of the accused. Ganguly, J. has,however, drawn a distinction on the facts of that caseand the present one and held that as the appellant was ayoung man, only 27 years of age, it was obligatory onthe trial court to have given a finding as to a possiblerehabilitation and reformation and the possibility that hecould still become a useful member of society in case hewas given a chance to do so. 10. We are, therefore, of the opinion that in the light ofthe findings recorded by Ganguly, J. it would not beproper to maintain the death sentence on the appellant."Both the Hon'ble Judges have relied extensively onDhananjoy Chatterjee case, (1994) 2 SCC 220 . 10. We are, therefore, of the opinion that in the light ofthe findings recorded by Ganguly, J. it would not beproper to maintain the death sentence on the appellant."Both the Hon'ble Judges have relied extensively onDhananjoy Chatterjee case, (1994) 2 SCC 220 . In thiscase the death sentence had been awarded by the trialcourt on similar facts and confirmed by the Calcutta HighCourt and the appeal too dismissed by this Court leadingto the execution of the accused. Ganguly, J. has,however, drawn a distinction on the facts of that caseand the present one and held that as the appellant was ayoung man, only 27 years of age, it was obligatory onthe trial court to have given a finding as to a possiblerehabilitation and reformation and the possibility that hecould still become a useful member of society in case hewas given a chance to do so." 67. In Akhtar v. State of U.P., (1999) 6 SCC 60 , for the rape andmurder by gagging of a young girl, who the appellant cameacross at a lonely place, the sentence of death awarded to theaccused was converted to one of life imprisonment and it wasobserved in paragraph 3 at SCC pp. 62-63: "3. ... But in the case in hand on examining the evidenceof the three witnesses it appears to us that the appellantaccusedhas committed the murder of the deceased girl notintentionally and with any premeditation. On the otherhand the appellant-accused found a young girl alone in alonely place, picked her up for committing rape; whilecommitting rape and in the process by way of gagging thegirl has died. The medical evidence also indicates that thedeath is on account of asphyxia. In the circumstances weare of the considered opinion that the case in hand cannotbe held to be one of the rarest of rare cases justifying thepunishment of death." 68. In Mohd. Chaman v. State (NCT of Delhi) (2001) 2 SCC 28 ,where the 30 year old accused had raped and killed a oneand-a-half year old child, even after describing the crime asheinous, and that the appellant had no control over his carnaldesires, the Apex Court had converted the death penalty toone of imprisonment for life holding that a humanist approachneeded to be followed and it could not be held that theappellant was such a dangerous person who would endangerthe community. It was held at page 40 of SCC para 25: "25. It was held at page 40 of SCC para 25: "25. Coming to the case in hand, the crime committed isundoubtedly serious and heinous and the conduct of theappellant is reprehensible. It reveals a dirty and pervertedmind of a human being who has no control over his carnaldesires. Then the question is: whether the case can beclassified as of a ''rarest of rare' category justifying theseverest punishment of death. Treating the case on thetouchstone of the guidelines laid down in Bachan Singh, (1980) 2 SCC 684 , Machhi Singh, (1983) 3 SCC 470 andother decisions and balancing the aggravating andmitigating circumstances emerging from the evidence onrecord, we are not persuaded to accept that the case canbe appropriately called one of the ''rarest of rare cases'deserving death penalty. We find it difficult to hold that theappellant is such a dangerous person that to spare his lifewill endanger the community. We are also not satisfied thatthe circumstances of the crime are such that there is noalternative but to impose death sentence even afteraccording maximum weightage to the mitigatingcircumstances in favour of the offender. It is our consideredview that the case is one in which a humanist approachshould be taken in the matter of awarding punishment." 69. In Surendra Pal Shivbalakpal v. State of Gujarat, (2005) 3 SCC 127 which was a case where an impecunious 36 year old U.P. migrant labourer had raped a young girl after being rebuffed by her mother for demanding sexual favours, in which the death penalty awarded to the accused was converted to life imprisonment as there was no material for showing that the appellant was involved in any other case or that he would be a menace to society. In para 13 it was held (SCC p. 131): "13. The next question that arises for consideration iswhether this is a ''rarest of rare case'; we do not think thatthis is a ''rarest of rare case' in which death penalty shouldbe imposed on the appellant. The appellant was aged 36years at the time of the occurrence and there is noevidence that the appellant had been involved in any othercriminal case previously and the appellant was a migrantlabourer from U.P. and was living in impecuniouscircumstances and it cannot be said that he would be amenace to society in future and no materials are placedbefore us to draw such a conclusion. We do not think thatthe death penalty was warranted in this case." 70. Learned G.A. on the other hand in his written argumentsplaced reliance on Mohd. Mannan v State of Bihar, (2011) 5SCC 317, Rajendra Prahladrao Vasnik v. State of Maharashtra, (2012) 4 SCC 37 , and Bantu v. State of U.P., (2008) 11 SCC113, where the Apex Court has held that on balancing theaggravating with the mitigating circumstances, the onlypunishment that would suffice in those cases looking to thebrutality of the crimes, was a sentence of death. 71. In Mohd. Mannan, a 7 year old girl had been done todeath by a 43 year old mason who was working in the house.He had sent the victim child to buy betel to a shop afterwinning her trust. He thereafter followed her to the shop, andtook her away on a bicycle to a lonely spot, where hemurdered her after causing various injuries to her forsatisfying his lust. None suspected his evil designs, as thevictim was a thin unattractive girl barely four feet in height.The Apex Court noticed the brutality of the crime andconsidered the appellant a menace incapable of reform. 72. In Rajendra Prahladrao Vasnik a 3 year old girl had beenlured away on the pretext of buying her biscuits away by a 31year old man with a false identity who had and won the trustof a poor family. Thereafter the girl had been brutally raped,and there were bleeding injures on her nose and mouth, andon her private parts. There were even bite marks on her chest.The deceased was then left in a naked condition in an openfield. 73. Bantu was a case where the appellant had taken awaythe 5 year old deceased Vaishali with him on the pretext ofgetting her a balloon. He had later been caught in a nakedcondition inserting a stem/ stick 33 cms into the fragile vaginaof the dead body for masquerading the case as one of anaccident. Looking to the abominable nature of of the crime thebench had confirmed the sentence of death awarded to Bantu. 74. It is apparent that the facts and circumstances of each ofthese cases is quite different. In these cases evidence was ledthat after winning the trust of the victim or her family a minorgirl had been lured, raped and then done to death by a wilyassailant after some cold blooded planning. 74. It is apparent that the facts and circumstances of each ofthese cases is quite different. In these cases evidence was ledthat after winning the trust of the victim or her family a minorgirl had been lured, raped and then done to death by a wilyassailant after some cold blooded planning. In the presentcase it it possible that the appellant came upon the victim girlall of a sudden, and probably after losing control over hissenses, he may have committed the dastardly crime. Afterwhich he tried to hurriedly conceal the offence by trying to getrid of the body from his house, in which endeavour he wasunsuccessful. 75. In a recent decision of the Apex Court, Shankar KisanraoKhade v State of Maharashtra, (2013) 5 SCC 546 , its earlierdecision in Sangeet v. State of Haryana, (2013) 2 SCC 452 ,was reiterated and it was observed that the appropriatenessof the "balancing test" of balancing the aggravating andmitigating circumstances, the aggravating circumstancesbeing the circumstances of the crime, and the mitigatingcircumstances being the circumstances of the criminal neededto be reconsidered, as these distinct and unrelated factorscould not be put on the same scale. Hon'ble K.S.P.Radhakrishnan J in his opinion in Shankar Kisanrao Khadenoted that even where the aggravating circumstances wereextremely grave, only if the mitigating circumstances relatingto the accused were zero percent, i.e. there was completeabsence of any circumstance favourable to the accusedpersonally with regard to his antecedents, could the case beconsidered one where the death penalty might be justified.Even then it needed to be considered whether it was therarest of rare case where only a death penalty wasappropriate. In Shankar Kisanrao, the 52 year old appellanthad enticed a 12 year old moderately intellectually challengedgirl living with her grandmother, and then repeatedlysodomized and raped her before strangulating her. Howeveras the appellant had only been earlier implicated for themurder of his wife and also in a case under section 380/ 457IPC, but was not convicted in those cases, hence the ApexCourt considered the High Court allegation against theappellant of having criminal antecedents not to have beenestablished, and the case in hand was therefore notconsidered the rarest of rare cases for award of the deathpenalty. Justice Radhakrishnan in paragraphs 37,38 and 39 ofthe law report specifically faulted the judgements in Mohd.Mannan, Rajendra Prahladrao Vasnik and Bantu for applyingthe "balancing test." 76. Justice Radhakrishnan in paragraphs 37,38 and 39 ofthe law report specifically faulted the judgements in Mohd.Mannan, Rajendra Prahladrao Vasnik and Bantu for applyingthe "balancing test." 76. In his separate opinion Justice Madan B. Lokur hasobserved in paragraph 123 of the law report, that thepossibility of reform or rehabilitation of the appellant was notruled out by any expert evidence in Mohd. Mannan, unlikesome other cases the conviction being based only oncircumstantial evidence was not held to be a mitigating factor. 77. In the aforesaid background we are of the opinion thatthis is not the rarest of rare cases, where the special reasonsexist for only awarding the death penalty and where the otheroption of awarding a sentence of imprisonment for life isunquestionably foreclosed. 78. In Shankar Kisanrao Khade the Apex Court had directedthat the life sentence (after commutation of the deathpenalty) for murder and the life sentence for rape and thesentences under other provisions run consecutively and notconcurrently. However, we see some difficulties in making thesentences run consecutively and not concurrently, as undersection 386(b)(iii) Cr.P.C. it is clarified that whereas in anappeal from conviction, the nature and extent of the sentencemay be altered, "but not so as to enhance the same." 79. In another similar case of rape and murder of aneighteen year old girl, by a young painter working in thehouse, who was suddenly overwhelmed by a sense of lust,and who after committing the murder tried to conceal thecorpse in a trunk in the house, this Court in Sanjay Kumar vState of U.P., (2012) 77 ACC 65 after relying on the decisionsin Ramraj v State of Chattisgarh, (2010) 1 SCC 573 , Mulla vState of U.P, (2010) 3 SCC 508 , and Rameshbhai ChandubhaiRathod (2) v State of Gujarat (2011) 2 SCC 764 , hadcommuted the sentence of death, to a sentence ofimprisonment for life for the remainder of the appellant's lifesubject to the clemency powers of the President or Governorunder Articles 72 or 161 or the State's powers of remissionunder the relevant statute. In an appeal preferred against thesaid judgment in State of U.P. v Sanjay Kumar, reported in(2012) 8 ACC 537, the Apex Court after reviewing the caselaw on the point, had regarded this approach of the HighCourt as finding an appropriate via media, for situations wherethe Court may be loath to impose a sentence of death for anyextenuating circumstances, and yet may feel that the routinesentence for life which in practice works out to a sentence of14 years or 20 years in view of guidelines framed by the Statewas grossly inadequate or disproportionately small. For suchoffences, the sentencing or the Appellate Court forproportionate sentencing whilst doing away with the deathsentence in a particular case, could impose a sentence evenextending for the prisoner's entire remaining natural life, orfor a fixed term over and above the mandatory 14 yearsactual jail term under section 433 A Cr.P.C, subject to theState retaining its powers of exercise of clemency or forgranting remission, in a bona fide and non-arbitrary andobjective manner. 80. That a minimum sentence for the prisoner's whole life orfor a fixed number of years over and above the statutoryminimum of 14 years can be prescribed by the Court beforethe accused is entitled to the benefit of the powers ofremission to be exercised by the government and theconcerned authorities under the appropriate statutoryprovisions, has been held to be valid by the three judgedecision in Swamy Shraddananda v. State of Karnataka, (2008) 13 SCC 767 . Recently Sahib Hussain v. State ofRajasthan, (2013) 9 SCC 778 has held the view of the twojudge decision in Sangeet v. State of Haryana (2013) 2 SCC452 to be per incuriam on the point where it had adverselycommented on the view of the larger bench in SwamyShraddananda (2), regarding the permissibility of prescribinga minimum sentence in life imprisonment matters withoutreferring the case to the Chief Justice for constituting a largerbench. This view in Sahib Hussain is in accord with the viewexpressed in the Constitutional bench decision in CentralBoard of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673 on the inappropriateness of a smaller benchdoubting the correctness of a larger bench decision withoutreferring the matter to the Chief Justice for constituting abench larger than the bench which has expressed the opinionwhich was being doubted. 81. On these considerations we are of the view that thejudgement of the trial judge convicting the appellant as abovebe upheld. 81. On these considerations we are of the view that thejudgement of the trial judge convicting the appellant as abovebe upheld. However the death sentence awarded to theappellant under section 302 IPC is commuted to a sentence ofimprisonment for life, which is to run for the remainder of theappellant's natural life, subject to a bona fide exercise of theclemency powers of the President or Governor or the powersof remission of the State under the appropriate statutoryprovisions. The remaining sentences awarded by the trialCourt are upheld. Adverse comments on manner of investigation and trial 82. Before parting however we must express our unease withthe casual manner in which the investigation and trial in thiscase has been conducted. 83. No doubt this Court relying on the observations in ZahiraHabibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 ,recommending to Courts not to act as mute spectators andmere recording machines, this Court had in the interest of ofjustice for the accused, victim and society acted proactivelyand called for and examined the samples of hair of thedeceased and appellant and other materials collected in thiscase on 29.10.13 which were thereafter sent to the C.D.F.D.,Hyderabad for DNA analysis. As mentioned above, accordingto the DNA report the hair of the deceased, which was cut bythe doctor conducting the post mortem examination, was ofthe same person whose hair was found in the room and bed inpossession of the appellant Also the hair, which was takenfrom between the fingers of the deceased matched with thehair of the appellant, which has been cut in jail on the ordersof this Court. The said material as we have shown above hasgone a long way for establishing the complicity of theappellant in this offence. However, we find gross negligence inthe I.O. and ineptitude on part of the the trial Court in notthemselves sending the hair samples, which were collected atthe place of occurrence and from the deceased, for D.N.A.examination which were crucial for establishing the complicityof the appellant in this offence. We also see negligence onpart of the the I.O. in not examining Dr. R.K. Singh, who hadinitially taken the hair samples and blood sample of theappellant and also in not keeping the sample in a propercondition causing us to find that the seal and bottle of thesample were damaged. We also see negligence onpart of the the I.O. in not examining Dr. R.K. Singh, who hadinitially taken the hair samples and blood sample of theappellant and also in not keeping the sample in a propercondition causing us to find that the seal and bottle of thesample were damaged. We had therefore directed that freshsample of hair of the appellants be cut and collected in the jailwhere he was lodged by the order dated 29.10.13. It is also asource of anxiety to us that in a case of such gravity as thepresent case, the Investigating Officer has only examined twowitnesses of fact viz. P.W. 1 Baise Ali and P.W. 2 Afzal andonly three other witnesses P.W. 3 Dr. Amit Kumar, P.W. 4Constable Parul Yadav and himself PW 5 S.I. Ashok KumarSingh. 84. We must state categorically that this is not the mannerto prove a charge of rape and murder of a 12 year old girl,and actually if we had not ourselves sent the samples of hairof the deceased and the hair found at the place of incidentwhich had been collected and got a fresh sample of the hair ofthe appellant cut and got the same sent for DNA matching toth the CDFD, Hyderabad, the order of conviction may havesuffered from some infirmities in view of the improbabilitiesalluded to by the learned counsel for the appellant, and therewas a risk that such a grave case of rape and murder a 12year old girl may have resulted in undeserved acquittal,eroding the confidence of the victim and the public in oursystem of justice. 85. It may be noted that this Court has earlier also adverselycommented against negligent investigations in cases of rapeand murder of minor girls, viz. Criminal Capital Appeal (Jail)No. 2531 of 2010], Bhairo vs. State of U.P. and Chhotu @ Ajayvs. State of U.P., Capital Case No. 863 of 2011 which hadended in unwarranted acquittals because D.N.A. samples werenot collected or the accused not subjected to medicalexamination or where witnesses did not appear or support theaccused after being won over, and other grave lacunae wereinadvertently or designedly left by inept or dishonestinvestigations. This Court had issued directions in those casesto the Director General of Police, U.P. to improve the processof investigations, especially in cases of rape and murder ofminor girls. which have been reiterated in the on-goingCriminal Writ Petition - Public interest Litigation No. 1797 of2011, Qasim Vs. This Court had issued directions in those casesto the Director General of Police, U.P. to improve the processof investigations, especially in cases of rape and murder ofminor girls. which have been reiterated in the on-goingCriminal Writ Petition - Public interest Litigation No. 1797 of2011, Qasim Vs. State of U.P., where this Court has beentaking steps and issuing directions for improving thetechniques and procedure for investigations in the State ofU.P. 86. We may mention that in the case of Dayal Singh vs.State of Uttaranchal, 2012 (8) SCC, 263, where the deceasedand injured were said to have been assaulted with lathies, butit appeared that the doctor conducting the post mortemexamination and the Investigating Officer had colluded withthe accused and no blunt object injury had been shown on thedeceased in the postmortem report. Also although the visceraof the deceased was preserved for sending to the ForensicScience Laboratory, it deliberately appeared not to have beensent. The Apex Court noted with approval that the trial Courtand High Court relying on the evidence of the eyewitnesses inpreference to the medical report had held the accused guilty.The trial Court had even recommended action against thedoctor and the police officer to the Director General (Health)and DGP. The Apex Court even initiated contempt proceedingsagainst the Director General Health Services of U.P. /Uttarakhand and Director General of Police, U.P./ Uttarakhandunder the provisions of the Contempt of Court Act for notcomplying with the directions of the trial Court and in failing totake action against the errant Medical Officer andInvestigating Officer for dereliction of their duties and alsodirected that disciplinary proceedings be initiated againstthem. It was further clarified that in case the I.O. and the Medical officer had retired, action could be taken against them even by withdrawal of their pensions. It was further observed in Dayal Singh (supra) that " if primacy is given to such designed or negligent investigations, omission and lapse by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the enforcement agency, but also in the administration of justice." 87. We are also disturbed by the manner, in which the trialJudge has recorded the 313 Cr. We are also disturbed by the manner, in which the trialJudge has recorded the 313 Cr. P. C. statement, which onlyconsisted of six questions compositely putting the case, thewitnesses and documents to the accused and simplyquestioning him as to why he was prosecuted and whether hehad anything else to say or defence to lead, instead of seekingthe explanation of the accused on each of the incriminatingcircumstances which appeared against him in the evidence onrecord, which is the requirement of law. 88. We were therefore constrained to re-frame detailedquestions against the accused with the assistance of thelearned G.A. on all the existing incriminating circumstances onthe record, in addition to the further specific questions whichwere framed regarding the DNA analysis and other co-relatedmaterial when the accused was re-examined under section313 Cr.P.C by this Court on 27.1.14. Direction issued to concerned authorities for improving investigations and trials in rape and murder cases 89. We therefore find it imperative to issue the following directions:- (1) That in cases of rape and murder of minor girls, which are based on circumstantial evidence, as far as possible, material which is collected from the deceasedor the accused for example hair or blood of the victim orthe accused, which is found on the persons or clothes ofthe victim or the accused or or at the spot, seminalstains of the accused on the clothes or body of thevictim, Seminal swabs which may be collected from thevaginal or other orifices of the victim and the blood andother materials extracted from the accused whichconstitutes the control sample should be sent for D.N.A.Analysis, for ensuring that forensic evidence forestablishing the participation of the accused in the crime,is available. (2) We also direct the Director General Medical HealthU.P., Principal Secretary Health, U.P., and D.G.P., U.P. tomandate sending the accused for medical examination ineach case for ascertaining whether he has any injuriescaused by the resisting victim, or when he attempts tocause harm to her as is provided under section 53 A ofthe Code of Criminal Procedure Code, which wasintroduced by Act 25 of 2005, (w.e.f 23.6.2006). Inparticular if the rape suspect is apprehended at an earlydate after the crime, it should be made compulsory totake both dry and wet swabs from the penis, urinarytract, skin of scrotum or other hidden or visible regions,after thorough examination for ascertaining the presenceof vaginal epithelia or other female discharges which arealso a good source for isolating the victim's DNA andnecessary specialized trainings be imparted to theexamining forensic medical practitioners for this purpose. (3) We direct the Principal Secretary (Health), U.P.,Director General (Health and Medical Services) U.P. toprohibit conducting the finger insertion test on rapesurvivors, and to employ modern gadget based or othertechniques for ascertaining whether the victim has beensubjected to forcible or normal intercourse. These fingerinsertion tests in female orifices without the victim'sconsent have been held to be degrading, violative of hermental and physical integrity and dignity and right toprivacy and are re-traumatizing for the rape victim.Relying on the International Covenant on Economic,Social, and Cultural Rights, 1966 and the United NationsDeclaration of Basic Principles of Justice for Victims ofCrime and Abuse of Power, 1985 it was further held inLillu v. State of Haryana, (2013) 14 SCC 643 that nopresumption of consent could be drawn ipso facto on thestrength of an affirmative report based on theunwarranted two fingers test. (4) We find that there is absence of an adequatelyequipped D.N.A. Laboratory in U.P. which has advancedmitochondrial DNA analysis facilities, comparable to theCDFD, Hyderabad, (from where we were able to obtainpositive results in this case, after unsuccessful DNAmatching in an earlier case [Criminal Capital Appeal (Jail)No. 2531 of 2010], Bhairo vs. State of U.P.(decided on6.9.11) where this Court had sent the sample of vaginalsmear slides and swabs and appellant's underwear to theU.P. DNA laboratory, viz. Forensic Science Laboratory,Agra), and we direct that such a DNA centre comparableto the CDFD be established in the State of U.P. at theearliest so that Courts and investigating agencies are notcompelled to send DNA samples at high costs to thespecialized facility of the CDFD at Hyderabad. (5) The Director General of Prosecution, U.P., theDirector General of Police U.P. and Director GeneralMedical Health should ensure that blind cases of rapeand murder of minor girls or other complicated cases arethoroughly investigated by efficient InvestigatingOfficers. Effective steps should be taken for forensicinvestigations by collecting and promptly sending forDNA analysis all possible incriminating material collectedfrom the deceased, victim, accused, and at the scene ofthe crime etc. Effective steps should be taken for forensicinvestigations by collecting and promptly sending forDNA analysis all possible incriminating material collectedfrom the deceased, victim, accused, and at the scene ofthe crime etc. which may give information about theidentity of the accused and his involvement in the crime,after taking precautions for preventing the contaminationof the material. This is necessary to prevent Courts beingrendered helpless because the prosecution andinvestigating agency are lax in producing witnesses orbecause witnesses have been won over or are reluctantto depose in Court. Steps should also be taken forpreventing witnesses from turning hostile, byprosecuting such witnesses, and even by cancelling bailsof accused where they have secured bails where it isapparent that efforts are being made to win overwitnesses and by providing witnesses with protectionwhere ever necessary so that they can give evidence inCourt without fear or pressure. In case there is reason tothink that the Investigating Officers or medical officers orothers have colluded with the accused, strict action beinitiated against the colluding officials as wasrecommended in the case of Dayal Singh vs. State ofUttaranchal (supra). It is necessary that policies andprotocols be developed by the DGP, U.P., PrincipalSecretary Health, Director Medical Health U.P., Directorof Prosecutions, U.P., for the aforesaid purposes. (6) The JTRI, Lucknow must ensure that proper trainingis given to Judicial Officers on framing proper questionsfor 313 Cr. P. C. examination, so that the entirecircumstances of the case are put to the accused andthey cannot claim the benefit of being inadequatelyquestioned about the incriminating circumstances of thecase 90. Copies of this order should also be placed on the recordin the case of Qasim v. State of U.P., Criminal Writ Petition -Public interest Litigation No. 1797 of 2011 We also direct theRegistry to forthwith forward this order to the respondentsabove mentioned who are to submit a compliance report ofthese directions in the on-going PIL, Qasim (supra) within 4weeks. 91. Subject to the aforesaid observations modifying thesentence and issuing directions as above this Appeal standsdismissed. 92. The Reference for confirming the death sentence is also rejected. 93. The Registry is directed to circulate copies of thisjudgement to all District Judges for ensuring compliance of thedirection herein above.