JUDGMENT Sujoy Paul, J. - The Death Reference and Criminal Appeal are arising out of impugned judgment dated 05.03.2019 passed in Case No.400160/2015 whereby appellant was held guilty for committing the offences and sentenced as under :- Serial No. CONVICTION SENTENCE 1. Under Section 376(2) (I) New Section of April 2, 2013 in Criminal Proceeding is Jointly with 5/6 Sexual Offences in Connection with the Child's Crime 376-A of the I.P.C. Death Sentence to be hanged till death and fine of Rs.200/-(Rs. Two Hundred) Only. In default of payment of fine further R.I. for 01 month. 2. Under Section 302 of the I.P.C. Death and fine of Rs.200/-(Rs. Two Hundred Only. In default of Payment of fine further R.I. for 01 month. 3. Under Section 201 of the I.P.C. R.I. for seven years and fine of Rs.200/- only. In default of payment of fine further R.I. for 1 month. All sentences shall run concurrently. In the above death sentence it is directed that the appellant be hanged by the neck till his death . FACTUAL BACKGROUND :- 2. The case of the prosecution before the Court below was that on 09.06.2015 at around 1:30 P.M. in village Jhagraha, Police Station Amlai, District Shahdol, the appellant raped and murdered 12 years old girl in the vacant room of Kailash Kewat and tried to hide her dead body under the paddy straws. 3. To elaborate, on 09.06.2015 the family members of victim were taking rest in their house. The father of victim was sleeping. The younger sister of victim (P.W.3) was watching T.V. with the victim. The victim told her younger sister (P.W.3) that she is going to answer the call of the nature. When she did not return for quite sometime, (P.W.3) came out of the house and found that in the house of Kailash Kewat, there is a vacant room which is opened. Out of curiosity, (P.W.3) went in front of that door and found that appellant is trying to hide. Out of fear, she came back. Thereafter, family members started searching for the victim. During search at around 7:00 P.M., the uncle of deceased (P.W.5) found that the dead body of victim is lying on the floor of a room of Kailash Kewat (P.W.9). The said room was being used to keep paddy straws & chaff. The legs of deceased were covered by using a heap of paddy straws. During search at around 7:00 P.M., the uncle of deceased (P.W.5) found that the dead body of victim is lying on the floor of a room of Kailash Kewat (P.W.9). The said room was being used to keep paddy straws & chaff. The legs of deceased were covered by using a heap of paddy straws. 4. The father of deceased (P.W.1) received an information on phone from his younger brother (P.W.5) about the dead body of her daughter. He, in turn, lodged the merg intimation. The police reached the scene of crime and prepared a punchnama of the dead body. Thereafter, the post mortem of dead body of the victim was conducted. The relevant educational qualification documents of victim were obtained from her father (P.W.1). During investigation, the statement of (P.W.3) was recorded under Section 164 of the Cr.P.C. 5. A site map was prepared. The undergarments and clothes of victim were recovered. In addition, the plain and blood stained soil were recovered. All the seized materials were sealed and a seizure memo was prepared. The appellant was arrested on 10.6.2015 and on the basis of his statement, from his house a blood stained T-shirt and underwear was recovered. The statement of accused was recorded in a DVD. The medical examination of appellant was conducted and during examination, his semen sample was also taken. The semen of accused, his clothes and blood sample were seized and were sent for examination to the Forensic Science Laboratory (FSL) and to the DNA Laboratory. 6. Thereafter, in due course, a charge-sheet was filed before the Special Court for committing offences under Sections 302, 376 and 201 of the I.P.C. read with Section 5/6 of Protection of Children From Sexual Offences Act, 2012 (POCSO Act). In turn, matter was committed to the Special Court. In the said Court, the appellant abjured the guilt and prayed to conduct a full-fledged trial. The appellant stated that he does not wish to lead evidence in defence. The Court below framed eight questions for its determination. 7. After recording the evidence and hearing the parties, the impugned judgment was passed convicting the appellant and imposing the sentences mentioned hereinabove. 8. The first determination was regarding the age of the victim. In order to prove the age, the father of victim (P.W.1) deposed that the age of victim at the time of death was 12 years. 7. After recording the evidence and hearing the parties, the impugned judgment was passed convicting the appellant and imposing the sentences mentioned hereinabove. 8. The first determination was regarding the age of the victim. In order to prove the age, the father of victim (P.W.1) deposed that the age of victim at the time of death was 12 years. This statement could not be demolished during cross-examination. 9. P.W.2 (mother of deceased) deposed that the age of her daughter was about 11 years. This statement was also not put to challenge during the cross-examination. 10. P.W.4 (grandmother of deceased) also stated in her court statement that deceased was studying in class-VI of a Government School and was aged about 12 years. This statement was further supported by P.W.5, P.W.6 and P.W.7. These statements were also not called in question during cross-examination. 11. Dr. R. K. Verma (P.W.16) and Dr. Radha Chaturvedi (P.W.19) conducted the post mortem. Dr. Radha Chaturvedi (P.W.19) stated that the age of deceased was about 12 years. 12. Vinod Kumar Singh (P.W.18), Headmaster of Government Middle School, Bakho entered the witness box and produced the Admission Register of the school. In addition, he produced the progress report (Pragati Patrak) of the deceased which were duly marked as Exhibits. In both the documents, namely Admission Register and Progress Report, the date of birth of deceased is mentioned as 15.8.2004. This witness (P.W.18) further deposed that a certificate Ex.P/22-A was produced which contains the date of birth of deceased as 15.8.2004. The original record on the strength of which this certificate was produced was also brought and exhibited as Ex.P/23. In candid terms, he stated that the Ex.P/22-A certificate contains the signature of the then Headmaster Shri Ramesh Namdeo, who retired on attaining the age of superannuation. He identified the signature of Ramesh Namdeo. 13. In view of foregoing documentary evidence, the Court below opined that on 09.8.2015, the age of victim was less than 12 years. 14. The Court below on the strength of statements of Dr. R. K. Verma (P.W.16) and Dr. Radha Chaturvedi (P.W.19) opined that the victim was subjected to rape/sexual assault and thereafter she was murdered by throttling/strangulating her. The incident had taken place before 24-36 hours. The post mortem report was exhibited as Ex.P/20. Importantly, the doctors also opined that the deceased resisted the sexual assault made by the accused. 15. Dr. R. K. Verma (P.W.16) and Dr. Radha Chaturvedi (P.W.19) opined that the victim was subjected to rape/sexual assault and thereafter she was murdered by throttling/strangulating her. The incident had taken place before 24-36 hours. The post mortem report was exhibited as Ex.P/20. Importantly, the doctors also opined that the deceased resisted the sexual assault made by the accused. 15. Dr. R. K. Verma (P.W.16) further stated that there were bleeding from private parts of the deceased. Labia Majora & Minora and hymen were ruptured. In order to get correct opinion, the vaginal swab of deceased and blood samples were taken and sent for FSL and DNA Test. During the cross-examination, the suggestion given by defence that injuries caused to the deceased could have been received if somebody fell down was denied by both the doctors. The Court below further recorded that a video recording of dead body of deceased was conducted which was provided to the accused and shown during camera trial. The appellant did not deny the same. 16. The statement of sister of deceased (P.W.3) was recorded under Section 164 of the Cr.P.C. Thereafter, her court statement was also recorded in due course. As per her version, she was watching TV along with the deceased. His brother and father were sleeping. The deceased left the house to answer the call of nature but did not return. (P.W.3) out of curiosity, peeped in the room of Kallu Kewat and found that accused Ramnath @ Bhursoo was trying to hide. In due course, the dead body of victim was found. The Court below opined that the appellant fled away after the incident and his this conduct is a relevant fact. The nature of injuries on the person of deceased were substantiated by the statements of P.W.1, P.W.5, P.W.6, P.W.7 and P.W.8. 17. The prosecution witnesses stated that the appellant is a relative of the deceased person and was called as 'Dada' (grandfather). During the investigation, the sealed slides of samples taken from private part of deceased were given to the constable of concerned police station, A.S.I. Gulam Husain (P.W.14). He, in turn, gave it to Head Constable Hari Kishore (P.W.15). The medical form requesting examination of victim is exhibited as Ex.P/13-A whereas seizure memo is Ex.P/14. During the investigation, the sealed slides of samples taken from private part of deceased were given to the constable of concerned police station, A.S.I. Gulam Husain (P.W.14). He, in turn, gave it to Head Constable Hari Kishore (P.W.15). The medical form requesting examination of victim is exhibited as Ex.P/13-A whereas seizure memo is Ex.P/14. Head Constable Hari Kishore (P.W.15) deposed that it contains his signature and he along with slides and clothes of deceased sent the same by memorandum Ex.P/9 through investigating officer (I.O.) (PW-20). The slides and the clothes were ultimately sent by the Superintendent of Police (S.P.) through Ex.P/26 for DNA Test. The DNA report (Ex.P/31) was received. The Court below held that the blood sample of accused and DNA report shows that prosecution could establish its case beyond reasonable doubt. In para-32 and 33 of the impugned judgment, the Court below gave findings in this regard. 18. In the impugned judgment, the Court below considered the statement of Hari Kishore (P.W.15) who deposed regarding information of death of victim to police station which was recorded at 0' (Zero) by Head Constable Madhav Singh (P.W.17). Sajjan Singh Parihar (P.W.20) stated that upon receiving the information of the dead body, he reached to the scene of crime. Photographer Mukesh Vishwakrama (P.W.12) took the photographs of the deceased and scene of crime. This photographer, in turn, entered the witness box and proved the photographs. 19. Dehati Nalisi (Ex.P/21) was recorded by Sajjan Singh Parihar (P.W.20). This witness further deposed that a spot map (Ex.P/2) was prepared in the presence of witnesses (P.W.7), Hira Kewat and (P.W.1) (father of deceased). The deceased was found to be wearing a yellow frock, green slacks and brown underwear. It is further deposed by him that a tile (khapra) of the roof of room where deceased was found was opened which gives an indication that somebody must have fled away from that place. 20. Sajjan Singh Parihar (P.W.20) further deposed as to how medical examination of accused was conducted, his blood sample for DNA was taken and sent for DNA examination along with his T-shirt and underwear. Similarly, he described the method by which the deceased's samples mentioned hereinabove were sent for the DNA Test through concerned Superintendent of Police. 22. 20. Sajjan Singh Parihar (P.W.20) further deposed as to how medical examination of accused was conducted, his blood sample for DNA was taken and sent for DNA examination along with his T-shirt and underwear. Similarly, he described the method by which the deceased's samples mentioned hereinabove were sent for the DNA Test through concerned Superintendent of Police. 22. The Court below from para-47 to 49 of the impugned judgment opined that chain of circumstances establishes the case of the prosecution and upon recording its satisfaction opined that the prosecution could establish its case beyond reasonable doubt and therefore, convicted the appellant for committing offences under Section Sections 302, 376 and 201 of the I.P.C. read with Section 5/6 of the POCSO Act. 23. Thereafter, the appellant was heard by the Court below on the question of sentence. The Court below after considering various judgments opined that appellant deserves the capital punishment. In this backdrop, this matter has come up for hearing before us. Submissions of Appellant/Amicus Curiae :- 24. Shri Abhay Gupta, learned counsel for the appellant submits that the date of birth of victim determined by the Court below is highly doubtful. The witness namely Vinod Kumar Singh (P.W.18) who entered the witness box and proved the progress report (Pragati Patrak) and Admission Register did not depose as to on what basis the date of birth was recorded. Thus, determination of age is improper. 25. The attention of this Court was drawn on the material seized which was sent for DNA Test in contrast to the DNA report. It is urged that Mr. Vijay Girnar conducted the DNA Test and stated that material for DNA Test from 'A to E' were received through concerned Superintendent of Police. A minute reading of the samples sent through a particular coding in juxtaposition to the coding given by DNA Institute shows that the coding was abruptly changed which creates serious doubt on the methodology adopted by DNA Institute. This vitiates the test report. 26. The statement of Sajjan Singh Parihar (I.O.) (P.W.20) was relied upon to contend that frock of deceased was of yellow colour. There is serious doubt whether it is the same frock which was recovered from the body of the deceased. The recovery memo dated 09.6.2015 (Ex.P/8) and Superintendent of Police's letter dated 18.6.2015 gives a different description of the frock. The statement of Sajjan Singh Parihar (I.O.) (P.W.20) was relied upon to contend that frock of deceased was of yellow colour. There is serious doubt whether it is the same frock which was recovered from the body of the deceased. The recovery memo dated 09.6.2015 (Ex.P/8) and Superintendent of Police's letter dated 18.6.2015 gives a different description of the frock. The colour of frock in those documents is shown as 'blue'. Thus, it cannot be safely said that the same frock which was seized from the person of the deceased was examined by the DNA Laboratory. 27. Shri Abhay Gupta, learned counsel also relied on the FSL report which was found to be negative. 28. The statement of P.W.3 recorded under Section 164 of the Cr.P.C. (Ex.P/6) and her court statement were read to show that the story narrated by her is not trustworthy. In her statement recorded under Section 164 of the Cr.P.C. (Ex.P/6), she deposed that the accused caught hold of the deceased by her neck when she was moving near the house of deceased. This part of statement is totally missing in her court statement. She further deposed that at around 4:00 P.M., she came to know that her sister is not traceable and informed her parents. The parents, in turn, lodged the 'Dehati Nalisi' against an 'unknown person'. If P.W.3 had already informed the name and role of appellant to the parents, there was no occasion for them not to mention the name of accused in the 'Dehati Nalisi'. The statement of Sajjan Singh Parihar Investigating Officer (P.W.20) was heavily relied upon wherein during cross-examination, he categorically admitted that he tutored P.W.3 to depose her statement (Ex.P/6) under Section 164 of the Cr.P.C. 29. Shri Abhay Gupta, learned counsel for the appellant took this Court to the statement of P.W.6 which shows that a cow entered the room where dead body of deceased was lying. The same witness stated that a person namely Ram Rattan also entered the same room where dead body of deceased was lying. Ram Rattan, Heera and Sahadev were not examined. 30. The statement of PW-7 (aunt of deceased) was relied upon to contend that this witness also stated that a cow and two persons entered the room where dead body of deceased was found. Ram Rattan, Heera and Sahadev were not examined. 30. The statement of PW-7 (aunt of deceased) was relied upon to contend that this witness also stated that a cow and two persons entered the room where dead body of deceased was found. This was absolutely impossible that none of them could notice the dead body when they entered a small room. 31. Learned counsel for the appellant also relied upon the statement of P.W.8 and Kailash Kewat (P.W.9). Kailash Kewat, who is owner of the house where dead body of the deceased was found, stated that his son Rahul took out some 'paira' (paddy straws) from the room where dead body of victim was found. Shri Abhay Gupta, learned counsel submits that various persons entered the said room and Rahul even took out the 'paira' (paddy straws) from the same room. Thus, it is totally unbelievable that none could notice the dead body lying there. 32. Shri Sanjay Agrawal, learned Senior Counsel/Amicus Curiae assisted by Shri Anuj Agrawal, Advocate assisted the Court and urged that P.W.2 (mother of deceased) could not state with accuracy as to when police reached the scene of crime. P.W.4 deposed that Ramnath was trying to hide the dead body of deceased but this witness turned hostile. Learned Senior Counsel also pointed out that there exists a difference in description of frock and other clothes of the deceased. In addition to the contradictions pointed out by Shri Abhay Gupta, Advocate, Shri Agrawal, Senior Advocate pointed out that a 'trouser' was sent for DNA examination but DNA report talks about a 'slip'. 33. Learned Senior Counsel further submits that in the FIR, the age of victim was shown as 13 years. The case is based on circumstantial evidence. The reason of death is rape followed by asphyxia and throttling. Dr. R. K. Verma (P.W.16) and Dr. Radha Chaturvedi (P.W.19) proved the post mortem report. In addition, Dr. R. K. Verma (P.W.16) deposed that in the sample taken from the appellant, his photographs was affixed. During the course of hearing, learned Senior Counsel has also drawn our attention to the statement of P.W.3 recorded under Section 164 of the Cr.P.C. and her court statement. 34. Learned Senior Counsel has taken us to the entire legal journey on sentencing policy and urged that the sentence imposed is disproportionate in nature. During the course of hearing, learned Senior Counsel has also drawn our attention to the statement of P.W.3 recorded under Section 164 of the Cr.P.C. and her court statement. 34. Learned Senior Counsel has taken us to the entire legal journey on sentencing policy and urged that the sentence imposed is disproportionate in nature. It is not a fit case for imposing capital punishment. 35. Learned Senior Counsel placed reliance on AIR 1952 SC 343 (Hanumant Govind Nargundkar Vs. State of M.P.), (1984) 4 SCC 116 (Sharad Birdhichand Sarda Vs. State of Maharashtra) and 1989 Supp (2) SCC 706 (Padala Veera Reddy Vs. State of Andhra Pradesh) which are related to circumstantial evidence. It is urged that Panchsheel principles laid down in the case of Sharad Birdhichand (supra) are consistently followed. As per said principles, the prosecution is required to establish a solid convincing chain of circumstantial evidence which must be flawless. 36. Another set of judgments cited by learned Senior Counsel are (2001) 5 SCC 311 (Smt. Kamti Devi Vs. Poshiram), (2010) 9 SCC 747 (Santosh Kumar Singh Vs. State through CBI) and judgment of Madhya Pradesh High Court, M.P. dated 17.5.2019 passed in Criminal Appeal No. 458/2019 (Afjal Khan Vs. State of M.P.). These judgments are arising out of cases where conviction is recorded based on DNA report and circumstantial evidence. The relevant portion of these judgments were read out to show that clear chain of circumstantial evidence and DNA report can form basis of conviction. 37. Furthermore, learned Senior Counsel relied on judgments where death sentence is commuted to the sentence of specified term without remission. These judgments are (2008) 13 SCC 767 (Swamy Shraddananda Vs. State of Karnataka), (2012) 5 SCC 766 , (Neel Kumar @ Anil Kumar Vs. State of Haryana), (2013) 7 SCC 725 (Ram Deo Prasad Vs. State of Bihar), (2014) 5 SCC 353 (Rajkumar Vs. State of M.P.), (2019) 8 SCC 382 (Parsuram Vs. State of M.P.). 38. Next volume of judgments provided by learned Amicus Curiae are those in which tests were laid down for the purpose of deciding the quantum of sentence. Reliance is placed on (1973) 1 SCC 20 , (Jagmohan Singh Vs. State of Uttar Pradesh), (1980) 2 SCC 684 , (Bachan Singh Vs. State of Punjab), (1983) 3 SCC 470 , (Machhi Singh Vs. State of Punjab), (1994) 2 SCC 220 , (Dhananjay Chatterjee Vs. Reliance is placed on (1973) 1 SCC 20 , (Jagmohan Singh Vs. State of Uttar Pradesh), (1980) 2 SCC 684 , (Bachan Singh Vs. State of Punjab), (1983) 3 SCC 470 , (Machhi Singh Vs. State of Punjab), (1994) 2 SCC 220 , (Dhananjay Chatterjee Vs. State of West Bengal), (1994) 2 SCC 467 (Bheru Singh Vs. State of Rajasthan), (1998) 7 SCC 177 , (Panchhi and others Vs. State of Uttar Pradesh, (2001) 9 SCC 50 , (Raju Vs. State of Haryana), (2001) 9 SCC 615 (Bantu @ Naresh Giri Vs. State of Madhya Pradesh), (2003) 8 SCC 92, (Amit Vs. State of Madhya Pradesh), Haryana Financial Corpn, (2010) 3 SCC 508 (Mulla and another Vs. State of Uttar Pradesh), (2010) 9 SCC 747 , (Santosh Kumar Singh Vs. State through CBI), (2011) 12 SCC 56 (Haresh Mohandas Rajput Vs. State of Maharashtra), (2012) 4 SCC 107 , (Amit Vs. State of Uttar Pradesh), (2013) 5 SCC 546 , (Shankar Kishan Rao Khade Vs. State of Maharashtra), (2014) 4 SCC 69 (Anil @ Anthony Arikswamy Joseph Vs. State of Maharashtra), (2017) 6 SCC 1 (Mukesh & another Vs. State NCT of Delhi) (Nirbhaya Case). 39. It is further urged that in the judgment of Division Bench of this court in CRRFC No.11/2019 dated 20.2.2020 (In Reference vs. Deepak @ Nanhu Kirar), this court has already considered the relevant tests prescribed by the Supreme Court for the purpose of deciding the quantum of sentence which is a case of similar nature where minor girl was raped and murdered. This Court has reduced the capital punishment to that of imprisonment for 35 years (without remission). 40. During the course of argument, Shri Abhay Gupta drew the attention of this Court to the Court's order dated 8.7.2019, whereby the trial court was directed to record the statement of Mr. Vijay Girnar, who conducted the DNA Test. In turn, said Shri Girnar was examined by the court below on 27.9.2019 and said statement is available on record with the appeal memo. Entire statement was read out to show that this statement is also silent about the change of code number on the articles sent for DNA examination. The suspicion regarding colour of frock could not be cleared even as per said statement of Mr. Girnar recorded on 27.9.2019. Stand of prosecution :- 41. Entire statement was read out to show that this statement is also silent about the change of code number on the articles sent for DNA examination. The suspicion regarding colour of frock could not be cleared even as per said statement of Mr. Girnar recorded on 27.9.2019. Stand of prosecution :- 41. Shri Yogesh Dhande, learned Public Prosecutor supported the impugned judgment and placed reliance on statements of father of victim (P.W.1) and the mother of the victim (P.W.2) wherein they deposed that as per information received by them from their daughter (P.W.3), the appellant was trying to hide in the room from where the dead body of the victim was recovered. Mother of the victim (P.W.2) made it clear that her family has no animosity with the appellant. Learned Government Counsel further urged that the statements of father of the victim (P.W.1), mother of the victim (P.W.2) and sister of the victim (P.W.3) on the specific fact that the appellant was trying to hide in the said room could not be demolished. It is also not in dispute that deceased was elder sister of P.W.3, who was a student of class VIth. No cross-examination was made on the statements of prosecution witnesses that the appellant was relative 'Dada' (grandfather) of the deceased. 42. Furthermore, reliance was placed on the statements of P.W.4 and P.W.5 and also on the photographs taken by the photographer Mukesh Vishwakrama (P.W.12) regarding the scene of crime and dead body etc. 43. The statements of Dr. R.K. Verma (P.W.16) and Dr. Chaturvedi (P.W.19) were relied upon to submit that the reason of death was rape and throttling. The death was homicidal in nature. This further shows that from the dead body, blood sample was collected with the consent of family members for DNA Test. Dr. Chaturvedi (P.W.19) made it clear that colour of frock of deceased was yellow. When all this incriminating material was brought to the notice of the appellant, he did not furnish any explanation in his statement recorded under Section 313 of Cr.P.C. 44. Shri Yogesh Dhande, learned Government Advocate further urged that the totality of evidence shows that date of birth of deceased was satisfactorily proved by prosecution through Vinod Singh (P.W.18), Upper Division Teacher who produced the Admission Register and 'Progress Report' which contains the date of birth of victim as 15.08.2004. Shri Yogesh Dhande, learned Government Advocate further urged that the totality of evidence shows that date of birth of deceased was satisfactorily proved by prosecution through Vinod Singh (P.W.18), Upper Division Teacher who produced the Admission Register and 'Progress Report' which contains the date of birth of victim as 15.08.2004. Thus, there is no manner of doubt that victim was a minor. 45. In view of foregoing argument, Shri Dhande urged that it was clearly established that- (i) Victim was below the age of 12 years. (ii) The death was homicidal in nature and was outcome of rape and throttling. (iii) Injuries were found on the body of appellant. (iv) Appellant neither gave any explanation in his statement recorded under Section 313 of the Cr.P.C. about the injuries on his body nor gave any explanation about other incriminating materials which were confronted to him. (v) The scientific report of DNA conclusively establishes the factum of rape on the deceased. 46. In support of aforesaid submissions, Shri Dhande, Government Advocate placed reliance on (2009) 6 SCC 600 (State of Uttar Pradesh Vs. Shobhanath and Ors.) and (2016) 12 SCC 660 (Anil Alias Bawa Vs. State of Haryana). It is canvassed that there is no reason why close relatives of appellant will unnecessarily rope-in the appellant by making wrong allegations against him. There is no reason to disbelieve the statement of close relatives of the deceased. Namdeo v. State of Maharashtra, (2007) 14 SCC 150 was pressed into service to bolster the submission that one eye-witness is sufficient to record conviction as per Section 134 of the Evidence Act. It is the quality of evidence which matters and not the quantity/number of witnesses. In absence of any inherent improbability in the statements of prosecution witnesses, court below has not committed any error in passing the impugned judgment. 47. The Division Bench judgment of this Court in Cr.A. No. 7544/2019 was referred to submit that on the basis of scientific report of DNA alone conviction can be recorded. Recent judgment of Gwalior Bench reported in 2021 SCC Online MP 1628 (Yogesh Nath Vs. State of M.P.) was referred to establish the importance of DNA report. Lastly, (2019) 9 SCC 622 (Ravi S/o Ashok Ghumare Vs. State of Maharashtra) was cited which is related to sentencing policy. Shri Dhande also supported the capital punishment awarded in the impugned judgment. 48. State of M.P.) was referred to establish the importance of DNA report. Lastly, (2019) 9 SCC 622 (Ravi S/o Ashok Ghumare Vs. State of Maharashtra) was cited which is related to sentencing policy. Shri Dhande also supported the capital punishment awarded in the impugned judgment. 48. Shri Abhay Gupta, Advocate in his rejoinder submission urged that a bare perusal of stand of appellant taken in the statements made under Section 313 of Cr.P.C. makes it clear that he has not admitted anything regarding collection of blood sample or DNA report etc. whereas the appellant of Cr.A. No. 7544/2019 in his statement recorded under Section 313 of Cr.P.C. admitted the factum of collection of blood sample from him for the purpose of DNA Test. At last, Shri Abhay Gupta, placed reliance on the judgment of this court in Cr.A. No. 646/2019 (Anand Kushwaha Vs. State) wherein this Court opined that since appellant therein was represented before the court below through a counsel provided by Legal Aid Committee, this is a mitigating circumstance in favour of the appellant. 49. Parties confined their arguments to the extent indicated above. We have bestowed our anxious consideration on rival contentions and perused the record. FINDINGS :- Age of the victim :- 50. In order to prove the age of deceased, prosecution produced Vinod Singh (P.W.18), an Upper Division Teacher of the Government School. This witness produced original Admission Register before the Court and copy thereof was marked as Ex.P/23. He also produced the progress report Ex.P/3 and categorically deposed that in the Admission Register at relevant entry regarding date of birth of deceased, the signature of Shri Ramesh Namdeo, the then Head Master is there. He identified the said signature and mentioned that as per Admission Register and progress report, the date of birth of deceased was recorded as 15.8.2004. He was put to cross-examination and singular question asked was whether he was present at the time of admission of deceased ? He replied that since he was not posted in the school at that time, he cannot state as to on what basis date of birth of deceased was recorded. 51. Shri Abhay Gupta, learned counsel for the appellant argued that since source of recording date of birth in the Admission Register is not established, date of birth so recorded is not trustworthy. We do not see any merit in this contention. 51. Shri Abhay Gupta, learned counsel for the appellant argued that since source of recording date of birth in the Admission Register is not established, date of birth so recorded is not trustworthy. We do not see any merit in this contention. In (2012) 9 SCC 750 Ashwani Kumar Saxena vs. State of M.P., the Apex Court opined as under :- "38. We fail to see, after having summoned the admission register of the Higher Secondary School where the appellant had first studied and after having perused the same produced by the Principal of school and having noticed the fact that the appellant was born on 24-101990, what prompted the court not to accept that admission register produced by the Principal of the school. The date of birth of the appellant was discernible from the school admission register. Entry made therein was not controverted or countered by the counsel appearing for the State or the private party, which is evident from the proceedings recorded on 11-2-2009 and which indicates that they had conceded that there was nothing to refute or rebut the factum of date of birth entered in the school admission register." (Emphasis Supplied) 52. In 2013 SCC Online MP 10475 (Raje vs. State of M.P.) this Court followed the ratio of Ashwani Kumar Saxena (supra) and opined as under :- "Since in the recent judgment, the Apex Court has considered the case of Jabar Singh (supra) and opined that the admission register of the school fulfills the requirement of 2007 Rules, the argument of Shri. Maheshwari fails. The bone of contention of Shri. Maheshwari is that the Rule only talks about the date of birth certificate and not about the admission register. However, the Apex Court in Ashwani Kumar Saxena (supra) has made it clear that the admission register is also an important piece of evidence." (Emphasis Supplied) 53. Supreme Court in its recent judgment reported in 2021 SCC OnLine SC 1079 (Rishipal Singh Solanki v. State of U.P.), considered the relevant judgments on the question of determination of age and broadly laid down the principles in para-29 of the judgment. The relevant clauses are as under :- (iii) That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. The relevant clauses are as under :- (iii) That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. (iv) The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. (vi) That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. (ix) That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. (Emphasis Supplied) 54. As per the ratio decidendi of Rishipal Singh Solanki (supra), it is clear that it is neither proper nor justifiable to apply any strict or abstract formula for determination of age of a person. The Court must examine the material available before it and on appreciation of evidence adduced by the parties in each case, should determine the age of victim/accused. 55. In the said judgment it was further made clear that determination of age when based on evidence, such as school record, the necessary requirement of Section 35 of Indian Evidence Act must be complied with. 56. We record our satisfaction in the manner prosecution has proved the date of birth/age of the victim. Original Admission Register and progress report of victim from a school first attended by her were produced and marked as Exhibits. The Government employee produced it, which shows that documentary evidence is produced from proper custody. The official documents were maintained in the discharge of official duty. Original Admission Register and progress report of victim from a school first attended by her were produced and marked as Exhibits. The Government employee produced it, which shows that documentary evidence is produced from proper custody. The official documents were maintained in the discharge of official duty. The relevant entry of Admission Register shows that against each entry, there exists a certification of correctness of the said entry made by the concerned officer at the relevant time. Thus, there is no manner of doubt that date of birth of the victim was 15.8.2004 and she was a minor when she was raped and murdered. Statement under Section 164 of Cr.P.C. and Court statement :- 57. The younger sister of deceased (P.W.3) in her statement recorded under Section 164 Cr.P.C. narrated somewhat a different story, if compared with her Court statement, was a submission made by Shri Abhay Gupta. The comparison thereof shows that her Court statement is not reliable. The argument on the first place appears to be attractive but lost its complete shine when examined in the teeth of principle and purpose behind insertion of Section 164 of Cr.P.C. in the statute book. 58. In AIR 1951 SC 441 (Tara Singh v. State), Vivian Bose, J. speaking for the Bench expressed the view as under :- "38.........I hold that the evidence in the committal court cannot be used in the Sessions Court unless the witness is confronted with his previous statement as required by Section 145 of the Evidence Act. Of course, the witness can be cross-examined about the previous statement and that cross-examination can be used to destroy his testimony in the Sessions Court. If that serves the purpose of the prosecution, then nothing more is required, but if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must, in my opinion, confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence under Section 288. As two of the eyewitnesses were not confronted in the manner required by Section 145, their statements will have to be ruled out, and if that is done the material on which the conviction is based is considerably weakened." (Emphasis Supplied) 59. Then only can the matter be brought in as substantive evidence under Section 288. As two of the eyewitnesses were not confronted in the manner required by Section 145, their statements will have to be ruled out, and if that is done the material on which the conviction is based is considerably weakened." (Emphasis Supplied) 59. The contention of learned counsel for the appellant deserves to be out-rightly rejected in view of authoritative pronouncement of Supreme Court in (2010) 6 SCC 493 (Utpal Das v. State of W.B.). The curtains are finally drawn on this issue by holding thus :- "16. Likewise, the statement recorded under Section 164 CrPC can never be used as substantive evidence of truth of the facts but may be used for contradictions and corroboration of a witness who made it. The statement made under Section 164 CrPC can be used to crossexamine the maker of it and the result may be to show that the evidence of the witness is false. It can be used to impeach the credibility of the prosecution witness. In the present case it was for the defence to invite the victim's attention as to what she stated in the first information report and the statement made under Section 164 CrPC for the purposes of bringing out the contradictions, if any, in her evidence. In the absence of the same the court cannot read the Section 164 statement and compare the same with her evidence." (Emphasis Supplied) 60. It is noteworthy that in the cross-examination of P.W.3 in the Court, she was not confronted with her previous statement recorded under Section 164 of Cr.P.C. Thus, neither said statement under Section 164 of Cr.P.C. can be read as substantive evidence nor it can be read by the Court to demolish the Court statement of P.W.3. Putting it differently, as held in Utpal Das (supra), the Court cannot compare the statement recorded under Section 164 of Cr.P.C. and Court statement in a case of this nature where the relevant witness was not put to test during crossexamination based on her previous statement recorded under Section 164 of Cr.P.C. Ocular evidence :- 61. P.W.3, sister of deceased is an important witness. She in clear terms deposed that she was watching TV with her deceased sister. Deceased sister left the room and went outside the house in order to answer the call of nature. P.W.3, sister of deceased is an important witness. She in clear terms deposed that she was watching TV with her deceased sister. Deceased sister left the room and went outside the house in order to answer the call of nature. Since she did not turn up for quite some time, came out of house and found that front door of a room in front of her house is kept opened. When she peeped into it, she found the appellant there who made an attempt to hide himself. She informed this to her parents in due course of time. Father (P.W.1) and mother (P.W.2) of the deceased supported this statement. Other prosecution witnesses also narrated that they came to know that appellant was trying to hide and while doing so was seen by P.W.3. 62. The site map (Ex.P/2) shows that the house of deceased is situated right in-front of the room where body of deceased was found. Thus, it is quite natural that when P.W.3 came out of her house in order to search her sister and found the door of the said room opened, she peeped inside the room and found the appellant attempting to hide himself. The story cannot be said to be unbelievable. 63. No doubt, there are little variations in the statement of prosecution witnesses regarding actual time of recovery of the dead body etc. but said minor contradictions are normal in a case of this nature where multiple witnesses have deposed their statements. No material contradictions could be established which can cause serious dent to the story of prosecution. 64. Apart from this, Vijay Kewat (P.W.10) is a recovery witness who proved the recovery of underwear and T-shirt of appellant which were marked as Ex.P/9. He proved his signature and seizure memo (Ex.P/10). The blood stained underwear and T-shirt were shown to him by prosecution before sealing the same. Sujeet Kewat (P.W.11) also supported the recovery and proved Ex.P/9 and seizure memo Ex.P/10. 65. Dr. R.K. Verma and Dr. Radha Chaturvedi conducted the post mortem and proved the relevant post mortem report. It is important to note that when Naksha Panchnama (Ex.P/7) was prepared, the description of clothes of deceased was given. It is mentioned that deceased was wearing a cream yellow colour half frock. Both the doctors opined that the reason of death is rape followed by throttling/strangulation. Radha Chaturvedi conducted the post mortem and proved the relevant post mortem report. It is important to note that when Naksha Panchnama (Ex.P/7) was prepared, the description of clothes of deceased was given. It is mentioned that deceased was wearing a cream yellow colour half frock. Both the doctors opined that the reason of death is rape followed by throttling/strangulation. The injury caused on the person of deceased must have been caused because of her resistance when she was subjected to sexual assault. It was further deposed that 3 ml. blood of accused was taken out for DNA Test which was handed-over to Sajjan Singh Parihar for DNA Test. The signature of appellant were also taken on the slip which was marked as Ex.P/34. In the said document, the signature of doctors are mentioned from "C - C" and "D - D" whereas appellant's signatures are mentioned at "B - B". 66. In view of the aforesaid ocular evidence, it is clear that victim was a minor. She was subjected to rape and murdered in a room situated in-front of her house. Appellant's blood stained clothes were recovered in the presence of witnesses. Post mortem report of deceased shows the aforesaid reason of death. The appellant was seen by P.W.3 in the room where body of deceased was found. 67. A cumulative reading of statements of prosecution witnesses show that they have proved the aforesaid aspect beyond reasonable doubt. Statement under Section 313 of Cr.P.C. :- 68. Dr. R.K. Verma (P.W.16) and Dr. Radha Chaturvedi (P.W.19) examined the appellant soon after the incident. Following injuries were found on his body :- (i) Abrasion on the right knee of size 1/2 x 1/2 inches, (ii) similar abrasion on left knee, (iii) Abrasion on the right forearm of size 4 inches x 1/9 inches (iv) Abrasion was one and half inch by 1/4 inches on the lower one-third of the right forearm. (v) Abrasion on the left arm of size 2 x 1/2 inches. (vi) Abrasion on right shoulder of size 1/4 x 1/4 inches. 69. The appellant when confronted with this incriminating material including nature of injuries, did not furnish any explanation at all. The purpose of inserting Section 313 of Cr.P.C. in the statute book is taken note of by Supreme Court in catena of judgments. (vi) Abrasion on right shoulder of size 1/4 x 1/4 inches. 69. The appellant when confronted with this incriminating material including nature of injuries, did not furnish any explanation at all. The purpose of inserting Section 313 of Cr.P.C. in the statute book is taken note of by Supreme Court in catena of judgments. In (2012) 6 SCC 174 (Munna Kumar Upadhyay alias Munna Upadhyaya v. State of Andhra Pradesh through Public Prosecutor, Hyderabad, Andhra Pradesh), the Apex Court has taken stock of previous judgments on this point and held as under :- "73. It is a settled law that the statement under Section 313 CrPC is to serve a dual purpose, firstly, to afford to the accused an opportunity to explain his conduct and secondly to use denials of established facts as incriminating evidence against him. In this regard, we may refer to some recent judgments of this Court. "21. Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced. 74. Again, in its recent judgment in Manu Sao v. State of Bihar [ (2010) 12 SCC 310 : (2011) 1 SCC (Cri) 370], a Bench of this Court to which one of us, Swatanter Kumar, J., was a member, has reiterated the abovestated view as under: (SCC pp. 316-17, paras 12-14) "12. Let us examine the essential features of this Section 313 CrPC and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Code. 13. As already noticed, the object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. 13. As already noticed, the object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the court and besides ensuring the compliance therewith the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or in the alternative to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the court is as to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. 14. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. 14. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence against the accused in any other enquiry or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution." 75. In view of the above principles, it was expected of the accused to render proper explanation for his injuries and his conduct. However, he opted to deny the same and in fact even gave false replies to the questions posed to him. 76. If the accused gave incorrect or false answers during the course of his statement under Section 313 CrPC, the court can draw an adverse inference against him. In the present case, we are of the considered opinion that the accused has not only failed to explain his conduct, in the manner in which every person of normal prudence would be expected to explain but had even given incorrect and false answers. In the present case, the Court not only draws an adverse inference, but such conduct of the accused would also tilt the case in favour of the prosecution." (Emphasis Supplied) 70. In this view of the matter, the Court below has rightly taken into consideration this relevant fact into consideration while recording conviction. We do not find any infirmity or illegality in the said finding. Photographs :- 71. The photographs of victim and the spot where she was raped and murdered were taken by a photographer Mukesh Upadhyay (P.W.12). The court below in para-38 and 39 of the impugned judgment dealt with these digital photographs and CD. We do not find any infirmity or illegality in the said finding. Photographs :- 71. The photographs of victim and the spot where she was raped and murdered were taken by a photographer Mukesh Upadhyay (P.W.12). The court below in para-38 and 39 of the impugned judgment dealt with these digital photographs and CD. On the basis of a judgment of Delhi High Court in RFA No. 744/2016 (Puneet Prakash Vs. Suresh Kumar Singhal) decided on 13th July, 2018, the court below opined that said statement of photographer and also the photographs and CD are admissible in evidence. 72. In our opinion, the judgment of Delhi High Court in Puneet Prakash (Supra) is based on the judgment of Supreme Court in Shafhi Mohd Vs. State of Himanchal Pradesh (2018) 2 SCC 801 . The judgment of Supreme Court in Shafhi Mohd (Supra) was considered by a larger Bench of Supreme Court in (2020) 7 SCC 1 (Arjun Panditrao Khotka Vs. Kailash Kushanrao Gorantyal and Others) and in para-73 of this judgment, the Apex Court specifically overruled the judgment of Shafhi Mohd (supra). Thus, judgment of Delhi High Court in Puneet Prakash (Supra) which was founded upon the judgment of Shafhi Mohd (supra) is impliedly overruled. Thus, we are unable to hold that said photographs are of any assistance to the prosecution. DNA report :- 73. The DNA report is assailed on three counts. Firstly, the colour of frock of victim in the DNA report is shown to be 'light yellow' whereas property seizure memo (Ex. P/18) shows that a blue colour frock was recovered. This is further clear from the letter dated 18.06.2015 written by Superintendent of Police, Shahdol to Director, FSL Sagar. In this letter also frock is shown to be of blue colour. Secondly, Exhibit 'C' in the report of Centre For DNA Fingerprinting And Diagnostics dated 23rd October, 2015, a pink colour slip Exhibit 'C' was shown whereas recovery memo does not reflect about any seizure of Exhibit'C'. Indeed a 'trouser' of deceased was allegedly seized. Thirdly, The document Ex.P/26 shows the description and marking of documents which is as under :- 74. If it is examined in juxtaposition with the DNA report, it will show that the exhibit numbers were rearranged. Indeed a 'trouser' of deceased was allegedly seized. Thirdly, The document Ex.P/26 shows the description and marking of documents which is as under :- 74. If it is examined in juxtaposition with the DNA report, it will show that the exhibit numbers were rearranged. The description given in the DNA report dated 23rd October, 2015 reads as under :- DESCRIPTION OF SOURCE Name of the source Received/collected on Exhibit Exhibit Code Two slides said to be vaginal swab slides of deceased victim 19-06-2015 A Z299 VSL1 Light yellow colour frock said to be of deceased victim 19-06-2015 B Z299 CL1 Pink colour slip said to be of deceased victim 19-06-2015 C Z299 CL2 Underwear said to be of accused Mr. Ramnath Kewat 19-06-2015 D Z299 CL3 Green colour T-shirt said to be of accused Mr. Ramnath Kewat 19-06-2015 E Z299 CL4 Blood sample said to be of Mr. Ramnath Kewat Identification form No.1 19-06-2015 F Z299 B1 (Emphasis Supplied) 75. In addition, attention of this Court was drawn on the order of this court dated 08.07.2019 whereby matter was remitted before court below for a limited purpose of recording statement of Mr. Vijay Girnar who prepared and signed the DNA report dated 23rd October, 2015. The statement of Vijay Girnar recorded on 27.09.2019 were also read out. 76. No doubt, there is a clear difference in description of colour of frock of victim in the seizure memo, SP's aforesaid letter and the DNA report. Similarly, there exists a difference regarding description of 'slip' of deceased victim. The Naksha Panchayatnama (Ex. P/7) and post mortem report Ex.P/20 which were duly proved by P.W.6 were prepared prior in time. This shows that deceased was wearing a half frock of yellow colour. It appears that while preparing the property seizure memo, the colour of frock is wrongly mentioned as 'blue' in place of 'yellow'. This description became foundation for SP's aforesaid letter. Even assuming that to this extent a doubt is created on the DNA report, it cannot be forgotten that as many as six materials were examined by DNA expert which includes - (i) Two vaginal swab slides of victim. (ii) Underwear of accused. (iii) T-shirt of accused & (iv) Blood sample of the accused - Ramnath Kewat. 77. Even assuming that to this extent a doubt is created on the DNA report, it cannot be forgotten that as many as six materials were examined by DNA expert which includes - (i) Two vaginal swab slides of victim. (ii) Underwear of accused. (iii) T-shirt of accused & (iv) Blood sample of the accused - Ramnath Kewat. 77. The result of DNA examination and conclusion reads thus:- CENTRE FOR DNA FINGERPRINTING AND DIAGNOSTICS RESULT OF EXAMINATION The source of Exhibit A (two slides said to be vaginal swab slides of deceased victim), female fraction of the source of exhibit B (light yellow colour frock said to be of deceased victim) and the source of exhibit C (pink colour slip said to be of deceased victim) yielded identical autosomal DNA profiles of female origin. The source of exhibit D (underwear said to be of accused Mr. Ramnath Kewat) and male fraction of source of exhibit B (light yellow colour frock said to be of deceased victim Ms. Khusboo) yielded identical autosomal DNA profiles of male origin and are matching with the autosomal DNA profile of the source of exhibit F(blood sample said to be of Mr. Ramnath Kewat). The source of exhibit E (green colour T-shirt said to be of accused Mr. Ramnath Kewat) yielded mixed autosomal DNA profile. The alleles present in the DNA profiles of the source of exhibit A (two slides said to be vaginal swab slides of deceased victim), exhibit B (light yellow colour frock said to be of deceased victim), exhibit C (pink colour slip said to be of deceased victim)and exhibit F (blood sample said to be of Mr. Ramnath Kewat) are accounted for being present in the DNA profile of the source of exhibit E at the amplified loci, as shown in the enclosed Table-1. The sources of exhibit A (two slides said to be vaginal swab slides of deceased victim), one part of exhibit B (light yellow colour frock said to be of deceased victim), Exhibit D (underwear said to be of accused Mr. Ramnath Kewat) and exhibit E (green colour T-shirt said to be of accused Mr. Ramnath Kewat) yielded identical Y-chromosomal DNA profiles and are matching with the Y-chromosomal DNA profile of the source of exhibit F (blood sample said to be of Mr. Ramnath Kewat). Ramnath Kewat) and exhibit E (green colour T-shirt said to be of accused Mr. Ramnath Kewat) yielded identical Y-chromosomal DNA profiles and are matching with the Y-chromosomal DNA profile of the source of exhibit F (blood sample said to be of Mr. Ramnath Kewat). The source of exhibit C (pink colour slip said to be of deceased victim) and another part of the source of exhibit B (light yellow colour frock said to be of deceased victim) yielded Y-chromosomal DNA profiles as shown in the enclosed Table-2. CONCLUSION The DNA test performed on the exhibits provided is sufficient to conclude that the biological fluid present on the sources of exhibit A (vaginal swab slides of deceased victim), exhibit B (light yellow colour frock said to be of deceased victim) and exhibit D (underwear of accused Mr. Ramnath Kewat) are from the source of exhibit F (Mr. Ramnath Kewat). (Emphasis Supplied) 78. Thus, even if we ignore the report to the extent frock and slip are mentioned, fact remains that the DNA report conclusively proves that biological fluid present on vaginal swab slides were of the source of present appellant. 79. Thus, we are of the considered view, that court below has taken a plausible view while giving finding related to DNA Test. 80. Mr. Vijay Girnar in furtherance of this Court's order dated 8.7.2019 deposed his statement before the trial Court and appellant got an opportunity to cross-examine him. A plain reading of his deposition makes it clear that no amount of cross-examination could be made which could cause dent on the fairness of the DNA Test. In other words, Shri Abhay Gupta, learned counsel although urged that change of coding in the Articles by DNA Test Laboratory is bad in law. No question in this regard was asked which can be said to be fatal for the DNA Test. 81. The statement of Vijay Girnar recorded on 27.09.2019 does not improve the case of appellant. The conclusion of the report dated 23rd October, 2015 is not confined to the 'frock' and 'slip' alone. On the contrary, it is wide enough to include the finding based on vaginal swab slides and compared with the biological fluid and Exhibit-D (underwear of present appellant). Since source was same, no eyebrows can be raised on the DNA Test conclusion. 82. On the contrary, it is wide enough to include the finding based on vaginal swab slides and compared with the biological fluid and Exhibit-D (underwear of present appellant). Since source was same, no eyebrows can be raised on the DNA Test conclusion. 82. The argument of Shri Abhay Gupta that rearranging the exhibit numbers of articles is bad in law, in our opinion, is devoid of substance. A comparative reading of the material sent for DNA Test and material examined shows that although there is a change in exhibit numbers, the material were also identified by 'name of the source'. This is neither shown to be illegal nor could cause any prejudice to the present appellant. 83. In view of aforesaid analysis, we are of the considered opinion, that the court below has rightly relied upon the DNA Test Report. Pertinently, when this DNA Test Report was brought to the notice of the appellant, he did not furnish any explanation in his statement recorded under Section 313 of Cr.P.C. The DNA Test is a scientific test and if this test result conclusively proved the case of prosecution, this alone can be a ground to record conviction. It is profitable to record the legal journey on this aspect. 84. The Apex Court in Santosh Kumar Singh v. State, (2010) 9 SCC 747 opined as under :- "68. It is significant that not a single question was put to PW Dr. Lalji Singh as to the accuracy of the methodology or the procedure followed for the DNA profiling. The trial court has referred to a large number of textbooks and has given adverse findings on the accuracy of the tests carried out in the present case. We are unable to accept these conclusions as the court has substituted its own opinion ignoring the complexity of the issue on a highly technical subject, more particularly as the questions raised by the court had not been put to the expert witnesses. In Bhagwan Das v. State of Rajasthan [ AIR 1957 SC 589 : 1957 Cri LJ 889] it has been held that it would be a dangerous doctrine to lay down that the report of an expert witness could be brushed aside by making reference to some text on that subject without such text being put to the expert. (Emphasis Supplied) 85. (Emphasis Supplied) 85. Apart from this, in view of scientific accuracy attached to DNA Test result, we are inclined to hold that Court below has rightly recorded the conviction of the appellant. The relevant paragraphs of the judgment of Santosh Singh (supra) needs to be reproduced thus :- "65. We now come to the circumstance with regard to the comparison of the semen stains with the blood taken from the appellant. The trial court had found against the prosecution on this aspect. In this connection, we must emphasise that the court cannot substitute its own opinion for that of an expert, more particularly in a science such as DNA profiling which is a recent development. 67. The statements of Dr. Lalji Singh and Dr. G.V. Rao reveal that the samples had been tested as per the procedure developed by the laboratory, that the samples were sufficient for the purposes of comparison and that there was no possibility of the samples having been contaminated or tampered with. The two scientists gave very comprehensive statements supported by documents that DNA of the semen stains on the swabs and slides and the underwear of the deceased and the blood samples of the appellant was from a single source and that source was the appellant. 71. We feel that the trial court was not justified in rejecting the DNA report, as nothing adverse could be pointed out against the two experts who had submitted it. We must, therefore, accept the DNA report as being scientifically accurate and an exact science as held by this Court in Kamti Devi v. Poshi Ram [ (2001) 5 SCC 311 : 2001 SCC (Cri) 892 : AIR 2001 SC 2226 ]." (Emphasis Supplied) 86. In a case of this nature, where DNA Test result conclusively proved the involvement of appellant even if the oral evidence is weak or vulnerable, conviction can be recorded. In Hemudan Nanbha Gadhvi v. State of Gujarat, (2019) 17 SCC 523 , it was poignantly held that :- "10. A criminal trial is but a quest for truth. The nature of inquiry and evidence required will depend on the facts of each case. The presumption of innocence will have to be balanced with the rights of the victim, and above all the societal interest for preservation of the rule of law. A criminal trial is but a quest for truth. The nature of inquiry and evidence required will depend on the facts of each case. The presumption of innocence will have to be balanced with the rights of the victim, and above all the societal interest for preservation of the rule of law. Neither the accused nor can the victim be permitted to subvert a criminal trial by stating falsehood and resort to contrivances, so as to make it the theatre of the absurd. Dispensation of justice in a criminal trial is a serious matter and cannot be allowed to become a mockery by simply allowing prime prosecution witnesses to turn hostile as a ground for acquittal, as observed in Zahira Habibullah Sheikh v. State of Gujarat [Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] and Mahila Vinod Kumari v. State of M.P. [Mahila Vinod Kumari v.State of M.P., (2008) 8 SCC 34 : (2008) 3 SCC (Cri) 414] If the medical evidence had not confirmed sexual assault on the prosecutrix, the TIP and identification therein were doubtful, corroborative evidence was not available, entirely different considerations may have arisen." (Emphasis Supplied) QUANTUM OF SENTENCE :- Balance Sheet :- 87. In the light of judgment of Supreme Court in Bachan Singh and Macchi Singh (supra), it is necessary to prepare a balance sheet of mitigating circumstances and aggravating circumstances. The mitigating circumstances are :- (i) The appellant has no criminal record, (ii) The commission of crime was not extremely barbarous, gruesome, diabolical, brutal or heinous in nature. (iii) The rape was outcome of the personal lust, (iv) The murder was not outcome of any pre-meditation and it was done by accused in spontaneity, (v) The crime was not committed to terrorize or harm a particular or larger section of society. (vi) No weapons were used. (vii) The cause of death is rape and asphyxia/throttling. (viii) The accused is a young person of 28 years of age, The aggravating circumstances are :- (i) The victim was an innocent minor girl, aged about twelve years, (ii ) She was in a defenseless and unprotected state, (iii ) Rape and murder of innocent minor girl. (iv) The appellant was a relative i.e. 'dada'. Thus, enjoying a position of trust and domination. 88. (iv) The appellant was a relative i.e. 'dada'. Thus, enjoying a position of trust and domination. 88. Learned Government Counsel for the State supported the capital punishment imposed by the court below. 89. The Apex Court apart from aforesaid balance sheet, also relied upon other tests namely 'Crime Test', 'Criminal Test' and 'R-R Test'. This court considered these tests in sufficient detail in Cr.A. No.7544/2019 (Deepak @ Nanhu Kirar Vs. State of M.P.). 90. In Deepak @ Nanhu Kirar Vs. State of M.P. the court held as under:- "62. The sentencing policy was taken note of by Apex Court in large number of cases. In the case of Bachan Singh Vs. State of Punjab, 1980 (2) SCC 684 , it was held that the normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The Court can depart from that rule and impose the sentence of death only when there are special reason. If the offence is of an exceptionally depraved and heinous character and constitute on account of its design and the manner of its execution, a source of grave danger to the society at large, the Court may impose death sentence. While interpreting Section 354 of Cr.P.C., the Apex Court in Machhi Singh and others Vs. State of Punjab, 1983 (3) SCC 470 opined that a balance sheet of aggravating and mitigating circumstance has to be drawn up and in doing so, the mitigating circumstance has to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances. The question which needs to be posed is whether the crime is such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstance. 63. In a recent judgment, 2018 SCC Online 2570 (Channulal Verma Vs. State of Chhattisgarh), the Apex Court took note of its previous judgments on sentencing policy and opined that the test discussed in Shankar Kishanrao Khade (supra) needs to be applied while awarding the death sentence. The test for death sentence are (crime test, criminal test and R-R test) and not the "balance test". To award death sentence, the 'crime test' has to be fully satisfied i.e. 100% and 'criminal test' 0% i.e. no mitigating circumstance favouring the accused. The test for death sentence are (crime test, criminal test and R-R test) and not the "balance test". To award death sentence, the 'crime test' has to be fully satisfied i.e. 100% and 'criminal test' 0% i.e. no mitigating circumstance favouring the accused. It was poignantly held that if there is any circumstance favouring the accused like young age of accused, 'criminal test' may favour the accused to avoid the capital punishment." (Emphasis Supplied) 91. Now, it is to be examined whether capital punishment imposed by court below is justified. In catena of judgments, it was held that the death sentence can be imposed only when there is no other alternative. Otherwise imposition of Life Imprisonment is the rule. In the instant case, there are mitigating circumstances which are in favour of the appellant. As per judgment of Apex Court in the case of Chhannu Lal Verma (supra), even if one circumstance favours the accused, which includes his young age, the imposition of capital punishment is not justified. 92. A Division Bench of this Court in Anand Kushwaha Vs. State of M.P. ILR [2019] M.P. 1470 considered judgments of Supreme Court of in tabular form. The first head deals with the cases in which the Apex Court affirmed the death sentence whereas second is relating to the cases where death sentence was commuted to imprisonment for life. It is profitable to quote the said tabular form in order to appreciate the backdrop and 'aggravating' and 'mitigating circumstances' and the result thereof. Death Sentence Affirmed 93. Before parting with the matter, we record our appreciation for valuable assistance provided by learned counsel for the parties in general and by learned Senior Advocate/Amicus Curiae in particular. 94. In the facts and circumstances of the case, the instant case does not fall in the category of the 'rarest of the rare case' deserving imposition of death penalty. There are other factors as discussed hereinabove which persuades us to hold that imposition of capital punishment is unwarranted in the factual matrix of the present case. The interest of justice would be met, if appellant is sentenced to undergo imprisonment of 35 years (without remission). 95. Resultantly, we partly allow the appeal. While confirming the conviction and other sentences, we modify the death penalty to life imprisonment of appellant for an actual period of 35 years without any remission. The interest of justice would be met, if appellant is sentenced to undergo imprisonment of 35 years (without remission). 95. Resultantly, we partly allow the appeal. While confirming the conviction and other sentences, we modify the death penalty to life imprisonment of appellant for an actual period of 35 years without any remission. The appeal is partly allowed and reference is answered accordingly.