Holding

The Supreme Court upheld the convictions under sections 302/34, 201/34 and 376 IPC, dismissed the appeals, and rejected the claim of juvenility due to lack of satisfactory evidence.

Summary

The case involves the rape and murder of a six‑year‑old girl whose body was discovered after four accused were seen throwing it from a gunny bag. The trial court convicted the accused under IPC sections 302, 34, 201, 34, 376 and 377 based solely on circumstantial evidence and sentenced them to death, which the High Court later commuted to life imprisonment and acquitted them of section 377. On appeal, the accused challenged the sufficiency of the circumstantial evidence, the omission of two witnesses' names from the FIR, the relevance of semen stains on their underwear, and claimed they were juveniles under the Juvenile Justice Act, 2000. The Supreme Court held that the chain of circumstantial evidence was complete and unambiguous, that the FIR omission was immaterial, that forensic evidence of semen was admissible, and that the claim of juvenility lacked satisfactory material, thus rejecting it. Consequently, the Court upheld the convictions under sections 302/34, 201/34 and 376 IPC, dismissed all appeals, and ordered the continuation of the life sentences.

Issues considered

The adequacy of circumstantial evidence to sustain convictions for murder and rape.
The materiality of omitting two witnesses' names from the FIR.
The evidentiary value of semen stains on the accused's underwear.
The propriety of raising a claim of juvenility at the appellate stage and the required proof.
The compliance with constitutional rights to legal representation in a capital case.

Legislation cited

Code of Criminal Procedure, 1973s. 164, s. 303, s. 304, s. 313
Indian Penal Code, 1860s. 201, s. 302, s. 34, s. 376, s. 377
Juvenile Justice (Care and Protection of Children) Act, 2000s. 7A

Subjects

circumstantial evidencerapemurderjuvenile justiceclaim of juvenilitydeath penaltylife imprisonmentFIRforensic evidenceconstitutional right to counsel

Judgment

[2009) 3 S.C.R. 468

A PAWAN
v.
STATE OF UTTARANCHAL
(Criminal Appeal No. 1000 of 2006)
FEBRUARY 26, 2009
B
[S.B. SINHA, ASOK KUMAR GANGULY AND R.M.
LODHA, JJ.]

Penal Code, 1860:
c
ss. 3021201134 and 376 - Rape and murder of a child of
six years - Trial court relying on circumstantial evidence
convicting the accused and sentencing each of them to death
- Sentence commuted to life imprisonment by High Court -
D HELD: Courts below have rightly held the circumstances
cumulatively completing the chain pointing towards guilt of the •
.
accused only - Sentence awarded by High Court calls for no
interference - Circumstantial evidence.

Juvenile Justice (Care and Protection of Children) Act,
E 2000:

s. 7-A -· Plea of juvenility - HELD: School leaving
certificate produced only after conviction, and primary
evidence like entries from birth register having not been
F produced and, as such, there being no satisfactory/adequate •
material, there is no reason to call for report about age of
accused at the time of commission of offence - Penal Code,
1860 - ss. 3021201134 and 376.

FIR - It is not necessary that names of all the witnesses
G be mentioned in FIR.

The accused-appellants faced criminal trial for
offences punishable ulss 302134, 201134, 376 and 377 IPC.
The prosecution case was that on the morning of
H 468
PAWAN v. STATE OF UTIARANCHAL 469

25.9.2003, the daughter of PW-4, a child of six years went A
out to answer the call of nature. When she did not return
for quite some time, and efforts to search her out yielded
no result, PW-4 lodged a report of her disappearance. In
the night between 25.9.2003 and 26.9.2003 at about 1.30
A.M, when PW-4 with his fellow migrant labourers from B
Nepal (PWs-2,3 and 5), outside of his hutment, was
waiting for his daughter, they saw four persons (the
accused) throwing a dead body of a child from a gunny
bag in the nearby vacant plot. PWs-2 to PW-5, raised an
alarm and apprehended the accused. They found the c
dead body to be of the daughter of PW-4. The accused
were handed over to the police which registered a case
u/ss 302/201/34 IPC. Since after receiving the medical
report, it was found that the child was raped by more than
one person and carnal intercourse also indicated to have D
__,
,. been committed on her, offences punishable u/ss 376
and 377 were also added. The trial court found the chain
of circumstances complete pointing out towards the guilt
of the accused and, accordingly convicted them u/ss 302/
34, 201/34, 376 and 377 IPC and sentenced each of them
E
to death. The High Court maintained the conviction u/ss
302/34, 201/34 and 376 IPC, but commuted the death
sentence to imprisonment for life. The conviction and
.. sentence u/s 377 IPC was, however, set aside .
~
In the appeal filed by the accused, it was contended F
for the appellants that there were inconsistencies in the
evidence of PWs 2 to 5 and it was not probable for these
witnesses to have seen in the midnight the dead body
being thrown from the gunny bag. It was also pleaded
that accused A-1 and A-2 were juvenile within the G
meaning of Juvenile Justice (Care and Protection of
Children) Act, 2000 on the date of incident and the trial
held under CrPC was illegal.

Dismissing the appeals, the Court
H
470 SUPREME COURT REPORTS [2009] 3 S.C.R.

A HELD:1.1. All the four witnesses (PW 2 to 5) are
consistent in their version on material aspects. Merely
because names of two witnesses were not mentioned in
the F.l.R., their presence does not become doubtful.
Omission of the names of two witnesses in the F.l.R. is
B not material, particularly, because it is not necessary that
names of all the witnesses be mentioned in the F.1.R. [Para
20] [481-D]

1.2. The testimony of PW-3 and PW-5 in respect of
light stands has been corroborated by the testimony of
C the Investigating Officer (PW-11) who has also deposed
that there was light at the gate of the School and also
near the hutment of PW-4. Significantly, none of the
witnesses (PWs-2 to 5) has been cross-examined in this
regard. [Para 21] [482-D]
D
1.3. It is true that the circumstances with regard to
carnal intercourse were not held to have been proved, but
on a careful consideration of the remaining
circumstances, which have been sufficiently proved by
E prosecution, it is clear that the proved circumstances
complete the chain cumulatively and there is no escape
from the conclusion that within all human probabilities the
crime was committed by the accused and none else, as
the proved circumstances unerringly point towards the
...
F guilt of the accused. [Para 30] [485-H; 486-, BJ

Hanuman Govind Nargundkar v. State of M.P. AIR
(1952) SC 343; State of U.P. v. Salish (2005)3 SCC 114;
Shankarlal Gyarasilal Dixit vs. State of Maharashtra (1981)
2 SCC 35; Subhash Chand vs. State of Rajasthan (2002) 1
G SCC 702 and Sadashiv Ramrao Hadbe vs. State of
Maharashtra And Anr., (2006) 10 SCC 92, referred to.

1.4. The trial court and the High Court having carefully
gone through the evidence of PWs 2 to 5, have rightly
H held the prosecution to have established the
PAWAN v. STATE OF UTIARANCHAL 471

circumstances, namely: the four witnesses having seen A
the accused throwing the dead body of the child in the
vacant plot; the accused having been apprehended by
the four witnesses and handed over to the police; there
being no enmity of the witnesses with the accused or any
special relations of the witnesses with the police; no B
explanation by the accused as to how the dead body of
the victim came in their possession and their act of
-< disposing of the dead body in the midnight, and the fact
that the victim was subjected to rape indicating the bend
of mind of the accused and their motive to commit her c
murder and then attempt to dispose of the dead body
surreptitiously. [Para 16,22 and 29) [482-E; 485-E-F; 479-
E-H; 480-A]

1.5. The view taken by the High Court is the only
' .... possible view on a proper appraisement of evidence and D
"' no other view is possible and it has not committed any
error in upholding the conviction of the accused persons
for the offences punishable u/ss. 302/34, 201/34 and 376
IPC. The sentence awarded to them by the High Court
calls for no interference. [Para 39) [493-B-D] E

2.1. If the plea of juvenility was not raised before the
.. trial court or the High Court and is raised for the first time
before this Court, the judicial conscience of the Court
" must be satisfied by placing adequate and satisfactory

-
F
material that the accused had not attained age of eighteen
years on the date of commission of offence; sans such
material any further enquiry into juvenility would be
unnecessary. [Para 37] [492-D-E]

Gurpreet Singh v. State of Punjab (2005) 12 SCC 615 G
and Murari Thakur and Another v. State of Bihar, AIR 2007
S.C. 1129, referred to.

2.2. In the instant case, the school leaving certificates
of A-1 and A-2 were procured only after they had been H
472 SUPREME COURT. REPORTS [2009] 3 S.C.R.

A convicted. Primary evidence like entry from the birth
register has not been produced. There being no
satisfactory and adequate material, there is no reason to
._
call for report about the age of A-1 and A-2 on the date
of commission of offence. [Para 38] [493-A-B]
8 Case Law Reference:
AIR (1952) SC 343 referred to para 14
(2005)3 sec 114 referred to para 14
c (1981) 2 sec 35 referred to para 14
(2002) 1 sec 10 referred to para 23
(2006) 1o sec 92 referred to para 23
(2005) 12 sec 615 referred to para 35
D
AIR 2007 S.C. 1129 referred to para 36 .. .....
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1000 of 2006.
E From the Judgment & Order dated 12.7.05 of the High
Court of Uttranchal, at Nainital in Crl. Appeal No. 210/2004.

WITH

Crl. Appeal No. 364 of 2009 @ SLP (Crl) No. 5209/06.
F
Crl. Appeal No. 1036/06

Crl. Appeal No. 1743/07.
-
TV. George, LC. Goyal, Jyoti Bansi and Ranjana Narain
G
for the Appellant.

S.S. Shamshery, Jatinder Bhatia and AP. Sahay for the
Respondents.

H The Judgment of the Court was delivered by
PAWAN v. STATE OF UTIARANCHAL 473

R.M. LODHA, J. A

Leave granted in S.L.P. (Crl.) No.5209/2006.

1. The appellants in these four appeals suffered death
sentence for the offence punishable under Section 302/34 IPC,
at the hands of Additional Distt. & Sessions Judge, First Fast B
Track Court, Nainital. The trial court also convicted the
appellants for the offences punishable under Sections 376 and
377, IPC and sentenced them to life imprisonment. Each of the
appellants was also convicted for the offenc~ punishable under
Section 201/34, IPC and sentenced to undergo seven years c
rigorous imprisonment and fine of Rs.2,000/- and in default in
payment of fine, additional imprisonment of six months. Since
death sentence was awarded, the trial court made a reference
to the High Court for confirmation. The appellants challenged
.., -+ the judgment of the trial court in separate appeals before the D
High Court of Uttaranchal at Nainital. The death reference and
appeals were heard together. Vide judgment dated July 12,
2005, the High Court maintained the conviction of the appellants
under Sections 302/34, 376 and 201/34, IPC. The sentence of
death awarded under Sections 302/34, IPC to each of the E
appellants was commuted to that of rigorous imprisonment for
life. The sentence awarded by the trial court under Sections 376
and 201/34, IPC, was maintained. The High Court, however,
'· acquitted the appellants of charge under Section 377, IPC and
~
their conviction and sentence under this count was set aside. F
It is from the judgment dated July 12, 2005 that these four
criminal appeals by special leave arise.

2. Amar Singh (PW-4) is a migrant labourer from Nepal.
He and his minor daughter Sushma aged six years were
residing in the locality known as Raj Mahal Hotel Compound G
Mallital, Nainital. On September 25, 2003 at about 8.00 A.M.
Sushma left her home to ease herself. When she did not return
for quite some time, she was looked for in the market, around
the lake and near about by her father but of no avail. Despite
H
474 SUPREME COURT REPORTS [2009] 3 S.C.R.

A frantic efforts when her whereabouts could not be known, PW-
4 reported her disappearance (Ext.Ka-10) at around 4.00 P.M.
at Police Station, Mallital. The night became horrendously
eventful for PW-4; he and three migrant labourers from Nepal,
namely, Veer Bahadur (PW-2), Puran (PW-3) and Mangal
B (PW-5) were waiting for Sushma to return. At about 1.30 A.M.,
four persons came from the side of the road up to vacant plot
of one Sardarji in that locality and were seen throwing the dead
body of a girl from the gunny bag in that plot. The gunny bag
was also thrown over there. PW-2, PW-3, PW-4 and PW-5
c raised alarm and caught hold of them; they were Babu (A-1 ),
Aamir (A-2), Pawan (A-3) and Arjun (A-4) and the dead body
was of Sushma (victim). A-1, A·2, A-3 and A-4 were taken to
the Police Station, Mallital.

3. PW-4 lodged the written report at about 2.00 AM.
D (September 26, 2003) and a case under Sections 302/201/34
IPC was registered against A1, A-2, A-3 and A-4. Their formal
arrest was made. In the morning of September 26, 2003 at
about 6.30 A.M. seizure memo of the dead body was prepared
by the investigating officer Bachhan Singh Rana (PW-11 ). Dr.
E K.S. Dhami (PW-1) conducted post-mortem of dead body of
Sushma at about 1.00 P.M. The accused persons were also
sent for medical examination. On the basis of the disclosure
statement A-1 and A-2, two feet long electric wire of yellow
colour from the house of Ramesh Monga situate near Sanwal
F School where the accused were then residing was recovered
vide Memo (Ext. Ka-6-A)

4. On September 27, 2003, while A-1, A-2, A-3 and A-4
-
were in District Jail, Nainital, their underwears were seized and
G sent for chemical examination to Forensic Science Laboratory,
Agra. The Pyajama and other items of victim were also sent to
Forensic Science Laboratory, Agra.

5. After receipt of the post-mortem report, the offences
under Sections 376 and 377 IPC were also added.
H
PAWAN v. STATE OF UTIARANCHAL [R.M. LODHA, J.] 475
. 6. Aamir's statement under Section 164, Cr.P.C. was A
recorded by the Judicial Magistrate, Nainital on October 7,
2003.

7. The investigating officer on completion of investigation
submitted charge sheet against A-1, A-2, A-3 and A-4 for the
B
offences punishable under Sections 302/34, 376, 377 and 201/
-{ 34 IPC. The Chief Judicial Magistrate, Nainital, took cognizance
and committed the case to the Sessions Judge, Nainital which
was transferred to the court of Additional Distt. & Sessions
Judge, First Fast Track Court, Nainital.
•
c
8. The defence of the accused persons was one of simple
denial. They stated that they have been falsely implicated in the
case.
·1
+ 9. Dr. K.S. Dhami (PW-1) who conducted post mortem D
examination on the dead body of victim found following injuries.

"Labiamajora are separated. Hymen ruptured. Reddish
secretion inside the vagina. Rectum -laceration &
abrasion around the external region on separation of
gluteal fold large rectal canal is visible which is dilated. E

....
Spintsers are damaged. There is blood present in the anal
canal. Mucosa is also damaged. Both rectal and vaginal
smears are taken. There is well defined ligature mark on
the upper part of neck slightly depressed and encircling
... the neck horizontally and completely. Colour is reddish & F
margins are ecchymosed. On dissection of ligature mark
there is extra vassion of blood ·into the sub cutaneous
tissue under the ligature mark as well as adjacent
structures."
°"':" G
Dr.K.S. Dhami (PW-1) recorded cause of death being asphyxia
as a result of strnngulation. These injuries according to Dr. K.S.
Dhami were sufficient in the ordinary course of nature to cause
death.
H
476 SUPREME COURT REPORTS (2009] 3 S.C.R.
,.
A 10. On the basis of the medical evidence, no doubt is left
that victim died of homicidal death and that she was raped
before being murdered. The medical evidence shows that her
hymen was ruptured; labiamajora separated and there was
reddish secretion inside the vagina. These are indicative of
B having the sexual assault. Dr. K.S. Dhami further opined the
rape on the deceased is possible to have occurred during the
time of 8.00 A.M. on September 25, 2003 to the night
(intervening night between September 25 and 26, 2003). The
evidence of Dr. K.S. Dhami has gone unchallenged in so far
c as A-3 and A-4 are concerned and in his cross examination
on behalf of A-1 and A-2, nothing has been elicited which may
cast doubt with regard to his testimony.

11. There is no eye witness account and the case depends
wholly upon circumstantial evidence. -+
D
12. When a case rests on circumstantial evidence, such
evidence must satisfy oft-quoted tests viz: (1) the circumstances
from which an inference of guilt is sought to be drawn, must be
cogently and firmly established; (2) those circumstances should
E be of definite tendency unerringly pointing towards the guilt of
the accused; (3) the circumstances taken cumulatively should
form a chain so complete that there is no escape from the
'
conclusion that within all human probabilities the crime was
committed by the accused and none else; and (4) the
F circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation of any other hypothesis
than that of the guilt of the accused and such evidence should
not only be consistent with the guilt of the accused but should
be inconsistent with his innocence.
G
..,.
13. Where the entire case hinges on circumstantial
evidence, great care must be taken in evaluating circumstantial
evidence to ensure that the circumstances on which the
prosecution relies are wholly consistent with the sole hypothesis
of the guilt of the accused.
H
PAWAN v. STATE OF UTTARANCHAL [RM. LODHA, J.) 477

14. Legal principles with regard to the circumstantial A
evidence in criminal trial have been explained by this Court time
and again; the first in long line of these cases being Hanuman
Govind Nargundkar v. State of M.P. [AIR (1952) SC 343] and
of late, State of UP. v. Satish (2005)3 SCC 114. Reference
to all these decisions is not necessary as we have already B
noticed these principles in preceding paragraphs. However,
Mr.T.V. George, learned counsel appearing for A-3, referred
to a decision of this Court in the case of Shankar/al Gyarasi/al
Dixit vs. State of Maharashtra, (1981) 2 SCC 35 which we may
refer to. The learned counsel relied upon the following c
observations made therein:

"..... It is not to be expected that in every case depending
on circumstantial evidence, the whole of the law governing
• cases of circumstantial evidence should be set out in the
judgment. Legal principles are not magic incantations and D
their importance lies more in their application to a given
set of facts than in their recital in the judgment. The simple
expectation is that the judgment must show that the finding
of guilt, if any, has been reached after a proper and careful
evaluation of circumstances in order to determine whether E
they are compatible with any other reasonable hypothesis.
" The High Court, it must be said, has referred to the recent
"' decisions of this Court in Mahmood v. State of UP.
(1976) 1 sec 542 and Chandmal v. State of Rajasthan F
(1976) 1 sec 621 in which the rule governing cases of
circumstantial evidence is reiterated. But, while formulating
its own view the High Court, with respect, fell into an error
in stating the true legal position by saying that what the
court has to consider is whether the cumulative effect of
"f G
the circumstances establishes the guilt of the accused
beyond the "shadow of doubt". In the first place, 'shadow
of doubt', even in cases which depend on direct evidence
• is shadow of "reasonable" doubt. Secondly, in its practical
application, the test which requires the exclusion of to her
H
-i.
478 SUPREME COURT REPORTS [2009] 3 S.C.R.
..
A alternative hypotheses is far more rigorous than the test
of proof beyond reasonable doubt."

15. It needs no emphasis that while evaluating
circumstantial evidence, which of course has to be done
carefully, the circumstances must be of such a nature as to be
B
capable of supporting the exclusive hypothesis that the accused
is guilty of the crime of which he is charged and the
circumstances so shown by the prosecution are compatible with ·-
no other reasonable hypothesis.
c 16. The following circumstances were relied upon by the
prosecution, and accepted by the trial court in order to establish
the charges against A-1, A-2, A-3 and A-4:

(i) On September 25, 2003, at about 8.00 A.M., victim .,
D left her home to ease herself.

(ii) Victim did not return to her house and all efforts on
that day in search of her and her whereabouts did
not yield any result.

E (iii) On that very day i.e. September 25, 2003, a
missing report was lodged by Amar Singh (PW-4)
at about 4.00 P.M. at Police Station, Mallital. ~

(iv) In the intervening night of September 25/26, 2003, •
PW-4 and others were sitting outside their huts
F
waiting for the victim, then about 1.30 A.M. in the
night they saw accused coming towards the vacant
plot of one Sardarji with a gunny bag and were
seen throwing the dead body of victim.
G (v) PW-2, PW-3, PW-4 and PW-5 seeing the accused
persons, raised an alarm and apprehended all of
them at the spot.

(vi) A-1, A-2, A3 and A-4 made extra-judicial
H confession of their guilt before PW-1, PW-2, PW-
)II
PAWAN v. STATE OF UTTARANCHAL [R.M. LODHA, J.] 479

3 and PW-4. A

(vii) The accused persons were then taken to the Police
Station, Mallital and in the intervening night of
September 25/26, 2003, at about 2.00 AM., First
Information Report was lodged. 8
(viii) At the instance and on the disclosure statement of
Jo, A-1 and A-2, piece of wire was recovered from the
house of Ramesh Monga.

(ix) On September 27, 2003, the underwears of A-1, A- c
2, A-3 and A-4 were attached and sent for chemical
examination. The chemical examination report
confirmed that the underwears were stained with
human semen and spermatozoa.
·•
~ D
(x) A-2 made a confession of his guilt before the
Judicial Magistrate on October 7, 2003.]

(xi) The medical evidence that victim was subjected to
rape and carnal inter course.
~
(xii) The medical evidence also indicative of the fact that
the offences of rape, carnal inter-course and murder
~
were committed, in all probability, by more than one
person.
" F
(xiii) No enmity between PW-2, PW-3, PW-4 and PW-5
against A-1, A-2, A-3 and A-4 nor PW-1, PW-2,
PW-3 and PW-4 had any special relations with the
police.

(xiv) No explanation by A-1, A-2, A-3 and A-4 as to how G
the dead body of victim came into their possession
and their act of disposing of the dead body in the
midnight.

(xv) The fact that the victim was subjected to rape and
H
480 SUPREME COURT REPORTS [2009] 3 S.C.R.

A carnal intercourse itself indicate the mental bend of
•
mind of the accused and further the motive to
commit her murder and then attempt to dispose of
her dead body surreptitiously to screen themselves
from legal punishment.
B
(xvi) Confirmation and presence of semen and
spermatozoa on the underwears of A-1, A-2, A-3
and A-4.

(xvii) Vaginal and anal/rectal smear of the victim and the
C confirmation of human blood and human semen
and spermatozoa.

17. The High Court discarded the circumstances
mentioned at serial Nos. (vi), (viii) and (x) and the prosecution
0 case of carnal intercourse. Despite that, the High Court was 4
convinced that all other circumstances have been cogently and
firmly established.

18. In so far as circumstances (i) & (ii) are concerned, none
of the accused persons disputed the said circumstances. The
E circumstance (iii) is a matter of record and fully proved. As a
matter of fact there was no serious challenge with regard to
proof of circumstance (iii) by the counsel for the accused
persons. •
F 19. Mr. T.V. George, the learned counsel for A-3
highlighted inconsistencies in the ocular version of PW-2, PW-
3, PW-4 and PW-5 to bolster up his contention that their
evidence deserves rejection. He referred to variations in the first
information report and the deposition of these witnesses. With
G reference to the site plan (Ext.Ka-13), the learned counsel
sought to contend that Hotel Rajmahal and its compound have
not been shown and it was not probable for these witnesses
to see in the midnight the dead body being thrown from the
gunny bag. He argued that circumstances (iv), (v) and (xiv)
H cannot be held to be established.
PAWAN v. STATE OF UTTARANCHAL [R.M. LODHA, J.] 481
'
~
20. PW-4 is the father of victim. PW-2, PW-3 and PW-5 A
are migrant labourers from Nepal like PW-4. They all were
residing in the same compound viz, Rajmahal Hotel Compound.
If despite frantic search throughout the day, the girl could not
be traced, there was nothing unusual if they were sitting outside
the hut of PW-4 in the night with a hope that the girl may return B
or somebody may leave her. In the night at about 1.30 AM.,
they saw four persons carrying one gunny bag and going
-"' towards plot of one Sardarji. They saw those persons throwing
a dead body from the gunny bag in that plot. The dead body
was of Sushma. They raised alarm and caught hold of the c
accused persons. They took the accused persons to the police
station and handed them over to the police. PW-4 lodged F.l.R.
and all of them came back to the place near the dead body.
Sans insignificant and minor contradictions here and there, all
i- these four witnesses are consistent in their version on material D
aspects as noticed above. Merely because the names of two
witnesses were not mentioned in the F.l.R., their presence does
not become doubtful. Omission of the names of two witnesses
in the F.1.R. is not material particularly because it is not
necessary that all the names of the witnesses be mentioned in
E
the F.l.R .. It is true that in the site plan (Ext. Ka-13), Hotel
Rajmahal and its compound have not been shown but the site
map basically reflects the place from where dead body of the
_," deceased was recovered and the place from where the
• accused persons are said to have been apprehended. Site
map also reflects the place from where gunny bag containing F
hawai chappal of the deceased was recovered. However, the
evidence of PW-2, PW-3, PW-4 and PW-5 leaves no manner
of doubt that Hotel Rajmahal is situate in that vicinity and near
the Hotel Sitakiran which is shown in the site plan. PW-2 is
specific that Hotel Sitakiran is situate near Hotel Rajmahal. In G
the site plan drain has been shown in the east to Hotel Sitakiran.
Sanwal School has also been shown in the site plan. PW-2 in
his deposition has also stated that Sanwal School is in th19 east
of the hotel. The testimony of PW-4 also shows that Sanwal
H
482 SUPREME COURT REPORTS [2009] 3 S.C.R.

A School is situate at a short distance of his hutment. All these
witnesses reside in that locality. Seen thus, merely because
Hotel Rajmahal and its compound have not been shown in the
site plan, it does not in any way affect the deposition of PW-2,
PW-3, PW-4 and PW-5.
B
21. The submission of the learned counsel that in the
absence of any light at the place of occurrence, it was highly
improbable that PW-2, PW-3, PW-4 and PW-5 saw the four ..
accused persons carrying gunny bag and going to the vacant
C plot of Sardarji and throwing a dead body does not appear to
us to be of substance. The testimony of PW-3 and PW-5 in
respect of light stands corroborated by the testimony of
investigating officer (PW-11) who has also deposed that there
was light at the gate of the Sanwal School and also near the
hutment of PW-4. Significantly, none of these witnesses (PW-
D 2, PW-3, PW-4 and PW-5) has been cross-examined in this
regard.

22. Having carefully gone through the deposition of PW-
2, PW-3, and PW-4 and PW-5, we find ourselves in agreement
E with the view of the trial court as well as that of the High Court
that circumstances (iv), (v) and (vii) are clearly proved.

23. That the underwears of the accused were seized on
September 27, 2003 when they were in jail and these articles •
F were sent for chemical examination is not in dispute. That the •
evidence pertaining to chemical examination of underwears
shows that those underwears were found stained with human
semen and spermatozoa is also not in dispute. Mr. T.V.
George, learned counsel, however, strenuously urged that
merely because underwears were found stained with human
G semen by itself cannot be used as an incriminating
circumstance against the accused. Learned counsel in this
regard placed reliance upon the following decisions: ( 1)
Shankar/al Gyarasila/ Dixit vs. State of Maharashtra, (1981)
2 SCC 35; (2) Subhash Chand vs. State of Rajasthan (2002)
H 1 SCC 702 and Sadashiv Ramrao Hadbe vs. State of
PAWAN v. STATE OF UTIARANCHAL [R.M. LODHA, J.] 483

~
Maharashtra And Anr., (2006) 10 SCC 92. A

24. Learned counsel heavily relied upon paragraph 28 of
the report in the case of Shankarla/ Gyarasilal Dixit which
reads thus:

'The discovery of a blood-stain of the 'B' Group measuring B
0.5 cm in diameter on the appellant's pant and of dried
_.._
stain of semen on his underpant are circumstances far too
feeble to establish that the appellant raped or murdered
Sunita. 'B' Group is not an uncommon group of blood and
no effort was made to exclude the possibility that the blood c
of the appellant belonged to the same group. As regards
the dried stain of semen on the appellant's underpant, he
was a grown up man of 30 years and no compelling
-; inference can arise that the stain was caused during the
'I-
course of the sexual assault committed by him on the girl." D
In Shankarfa/ Gyarasi/a/ Dixit, the presence of a dried stain
of semen on the underpant of the accused, aged 30 years, was
held too feeble a circumstance to establish the guilt. The
aforesaid observation cannot be read to mean that in no case
E
presence of dried stain of semen on the underpant/underwear
of the accused can be considered as an incriminating
> circumstance against the accused.
-\
25. Paragraph 19 of the report in Subhash Chand relied
upon by learned counsel reads thus: F

"In the present case the age of the accused was about 21
years at the time of the incident. On his arrest he was
subjected to medical examination and found to be a potent
and capable person. Presence of semen stain on G
...,. underwear, assuming that the underwear belonged to the
accused, though there is no evidence adduced in this
regard, is not by itself an incriminating piece of evidence
connecting the accused with the crime in question. So also
the discovery of Group B bloodstain on the underwear
H
484 SUPREME COURT REPORTS [2009] 3 S.C.R.
v
A cannot be treated as an incriminating piece of evidence
against the accused connecting him with the crime
because there is no evidence that the underwear belonged
to the accused and further the possibility of the underwear
being stained with the blood of the person to whom it
B belonged, or the accused if he was wearing it has not been
ruled out."

It would be seen that in the case of Subhash Chand there
was no evidence that the underwear belonged to the accused
and further the possibility of the underwear being stained with
c the blood of the person to whom it belonged or the accused if
he was wearing was not ruled out.

26. In the case of Sadashiv Ramrao Hadbe, this Court
made the following observations:
-.\
D
"It is true that the petticoat and the underwear allegedly worn
by the appellant had some semen but that by itself is not
sufficient to treat that the appellant had sexual intercourse
with the prosecutrix. That would only cause some suspicion
on the conduct of the appellant but not sufficient to prove
E
thei case, as alleged by the prosecution."

The aforesaid observation has to be read in the light of ~

the observation made in paragraph 6 of the report that the >-
prosecution evidence was found to have many contradictions
F and the whole incident seemed to be highly improbable.

27. As a matter of fact there is no challenge with regard
to proof of the circumstances (ix) and (xvi). The challenge is on
relevance of these circumstances on the ground that the
G
accused persons are labourers and they do not change their
underwears daily and merely because their underwears were
found to have semen stains, that by itself cannot be used as
an incriminating circumstance. We find no merit in this
contention. In our opinion, the circumstances (ix) and (xvi) do
provide link in forming the chain together with other
H
PAWAN v. STATE OF UTIARANCHAL [R.M. LODHA, J.] 485

·1
circumstances against the accused persons and do not deserve A
to be ignored. Circumstances (ix) & (xvi) have rightly been held
to be established by the trial court as well as High Court.

28. In so far as circumstances (xi), (xii) & (xvii) are
concerned, the evidence of Dr. K.S. Dhami (PW-1) establishes B
that victim was subjected to rape and murder. Mr. T.V. George,
learned counsel for A-3, however, sought to urge that the injuries
--'I and medical evidence make it highly improbable that four
persons raped the minor girl. Firstly, no question or suggestion
has been put to PW-1 in this regard. Secondly, and more
importantly, semen stain with spermatozoa were found on the
c
underwears of all the four accused. Thirdly, chemical
examination of the vaginal smear of the victim has also
confirmed presence of human blood, semen and spermatozoa.
_, In view of this evidence, rape of victim by more than one culprit
-i
can be safely held to be established. The medical evidence D
proves beyond reasonable doubt that the victim died of
homicidal death and that she was raped before being
murdered. Circumstances (xi), (xii) and (xvii) to this extent are
clearly proved.
E
29. Nothing has been brought on record that PW-2, PW-
3, PW-4 and PW-5 had any enmity with A-1, A-2, A-3 and A-4
> or had any special relations with the police. That A-1, A-2, A-3
-\ and A-4 were seen throwing the dead body of the victim in the
intervening night of September 25/26, 2003 is also established. F
The circumstances (xiii), (xiv) and (xv), thus, have rightly been
held to be proved by the trial court as well as High Court.

30. Ms. Ranjana Narayan, amicus-curiae for A-4 submitted
that circumstances (vi) , (viii) & (x) and part of circumstances
(xi) & (xii) having not been held established by the High Court, G
there is break in the chain and the link having been snapped,
it cannot be held that chain is complete. It is true that the
circumstances (vi), (viii) & (x) and part of circumstances (xi) &
(xii) with regard to carnal intercourse have not been held to be
proved but on a careful consideration of the remaining H
486 SUPREME COURT REPORTS [2009] 3 S.C.R.

A circumstances which have been sufficiently proved by
prosecution, we are of the considered view that the proved
circumstances complete the chain cumulatively and there is no
escape from the conclusion that within all human probabilities
the crime was committed by the accused and none else as the
B proved circumstances unerringly point towards the guilt of the
accused. We are, therefore, unable to accept the submission
of the amicus-curiae.

31. Mr. L.C. Goyal, learned counsel for A-1 and A-2
submitted that these accused were not given sufficient
C opportunity to defend themselves and constitutional mandate
was flouted and also they were denied their statutory right to
be defended by a pleader as envisaged under Sections 303
and 304 Cr.P.C.
...
D 32. We deem it proper to refer to the consideration of this
aspect by the High Court which is as follows:

"In regard to the submission that the trial stand vitiated for
want of compliance of the constitutional mandate as well
as the legal provisions it need to be stated that the
E
accused were committed to the Court of Sessions on
20.12.2003 by the C.J.M., Nainital and when the accused
were brought before the court of Sessions in pursuance
of the commitment of the case date for framing of the
charge was fixed by the Sessions Judge, Nainital. The date
F fixed for the purpose was 2.3.2004. Before this date the
sessions trial was transferred to the court of Additional
Sessions Judge/1 F.T.C., Nainital for disposal according
to law and on receipt of the record this transferee court
fixed 16.3.2004 for framing of the charge. The Additional
G Sessions Judge took up the case for this purpose on
16.3.2004 and in the presence of all the four accused
persons framed charges against them for the offences as
mentioned above and for the commission of which the
accused were later on convicted. The order sheet of the
H said date does not reflect the presence of the defence
PAWAN v. STATE OF UTTARANCHAL [RM. LODHA, J.) 487
__,_
lawyer or even the public prosecutor before the learned A

- Additional Sessions Judge and perhaps the charges were
framed after perusal of the documents of the prosecution
without referring that the Judge was of the opinion that
there were grounds for presuming that the accused have
committed offences which are exclusively triable by the B
court as envisaged by Section 228 of the 'Code'. Record
also reveal that till that date neither the accused have
engaged their own lawyer nor they were provided with a
defence lawyer at the expense of the state as provided
under Sections 303 and 304 of the 'Code'. The learned c
Additional Sessions Judge however after framing the
charges and making an endorsement that the accused
pleaded not guilty and claimed to be tried, fixed 24.3.2004
for recording of the evidence of the prosecution and
-1. directed the prosecution witnesses to be summoned. On
D
24.3.2004 A.D.G.C. (Criminal) moved an application for
adjournment of the trial in view of the prosecution
witnesses having not been served with summons and on
his prayer the trial was adjourned to 7.4.2004 for recording
of the evidence of the prosecution. However no lawyer was
appointed on this date also as Amicus Curiae for the E

... accused. On 7.4.2004, as Is evident from the record and
.~ the order sheet of the said date, three prosecution
.--., witnesses, P.W.1, P.W.2 and P.W.3 were examined by the
prosecution, and on the same day Sri M.A. Khan,
Advocate was appointed Amicus Curiae. The Amicus F
Curiae cross-examined all these three witnesses on behalf
of two accused Babu and Aamlr only which· indicate that
only these two accused were provided the Amicus Curiae
by the learned Additional Sessions Judge. The witnesses
were cross-examined by a lawyer on behalf of other two G
accused Pawan and Arjun which indicate that they have
engaged· the lawyer of their choice after the charges
against them have already been framed in the trial.
There can be no doubt that although the charges H
488 SUPREME COURT REPORTS [2009] 3 S.C.R.
1--
A were framed against the accused on 16.3.2004 without the
accused being represented by their counsel and without
recording of the satisfaction of the Judge that there are
grounds for presuming that the accused have committed
the offences with which they were being charged as
B envisaged by Section 228 of the 'Code', but we are of the
considered view that there was enough evidence and
material available on record at that time to form an opinion ,,__
that there was sufficient ground for proceeding against the
accused. The reason being that at the stage of framing of
c the charge the Judge is not required to enter into detailed
scrutiny and consideration of the material arid evidence
which is available in the form of the record of the
investigation or the documents submitted with the charge
sheet and therefore as the allegations stand against the
accused supported by the collected evidence even the .;-
D
above infraction in the compliance of the legal provision
do not indicate any prejudice having been caused to the
accused and in a situation like this the above aspect would
not entail vitiation of the entire trial against the accused.
E Amicus Curiae to the two accused in the case was
provided on the day, that is, 7.4.2004 when three
prosecution witnesses were examined in the trial. Sri MA.
Khan, Advocate was appointed Amicus Curiae for the two
..
~
accused and he proceeded to cross-examine all the three
F witnesses on that date itself. Learned Senior Counsel Sri
Panwar submitted that a duty is cast on Sessions Judge
to see that raw and inexperienced juniors are not
appointed to defend an accused in capital punishment
cases and in support of the argument learned counsel
G pressed into service the reported decisions Panchu Gopa/
Das vs. State; A.l.R. 1968 Cal. 38, and Mohd. Kunnumal
vs. State of Kera/a; A.LR. 1963 Ker. 54. The argument
was advanced on the assumption that the Amicus Curiae
appointed by the learned Additional Sessions Judge was
H an inexperienced Advocate, but we find nothing on record
PAWAN v. STATE OF UTIARANCHAL [RM. LODHA, J.] 489

to sustain the submission made in that behalf. It appears . A
that Sri M.A. Khan, Advocate was practicing in criminal
side in the Sessions Court at Nainital and judicial notice
can be taken of the fact that he is at present a Brief Holder
of the State of Uttaranchal in the High Court and is
conducting criminal appeals in the High Court. This B
indicate that Sri Khan has long standing as a criminal
__ .), lawyer and was rightly appointed as Amicus Curiae to
defend the accused in capital punishment case. Further he
was assigned the case to defend the two accused at the
expense of the state on the day when the three prosecution c
witnesses were examined but the learned Amicus Curiae
had not sought adjournment to avail some time to prepare
the case. This indicate that the learned Amicus Curiae has
......., not felt handicapped and must have prepared the case to
his satisfaction so as to proceed with the cross- D
examination of the witnesses on that very day and looking
at the cross-examination of the witnesses we do not find
that for this reason any prejudice was caused to the two
accused for whom he was appointed Amicus Curiae."
We agree with the view of the High Court. E
. ,. 33. Now, we deal with the contention of juvenility of Babu
... (A-1) and Aamir (A-2). The learned counsel submitted that A-
1 and A-2 were 'juvenile' within the meaning of Juvenile Justice
(Care and Protection of Children) Act, 2000 (for short 'the Act, F
2000') on the date of incident and the trial held by Additional
Sessions Judge, Nainital, under the Code of Criminal
Procedure was illegal. With regard to the age of A-2, reliance
is placed on his statement recorded under Section 313,
Cr.P.C. wherein his age has been recorded as 17 years and G
a school leaving certificate indicating his date of birth as March
12, 1987. For A-1, his school leaving certificate which records
his date of birth July 16, 1988 is being relied. The learned
counsel would submit that juvenility can be claimed at any stage;
even for the first time before this Court. He referred to Section
H
490 SUPREME COURT REPORTS (2009] 3 S.C.R.

A 7A of the Act, 2000.
~'
34. Section 7A came to be inserted in the Act, 2000 with
effect from August 22, 2006. It reads thus:

"S. 7A. Procedure to be followed when claim of juvenility
B is raised before any court. - (1) Whenever a claim of
juvenility is raised before any court or a court is of the
opinion that an accused person was a juvenile on the date "--

of commission of the offence, the court shall make an
enquiry, take such evidence as may be necessary (but not
c an affidavit) so as to determine the age of such person,
and shall record a finding whether the person is a juvenile
or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any ..._
D court and it shall be recognized at any stage, even after .t

final disposal of the case, and such claim shall be
determined in terms of the provisions contained in this Act
and the rules made thereunder, even if the juvenile has
ceased to be so on or before the date of commencement
of this Act.
E
(2) If the court finds a person to be a juvenile on the date ,.
of commission of the offence under sub-section (1), it shall ,...
forward the juvenile to the Board for passing appropriate
order, and the sentence if any, passed by a court shall be "
F deemed to have no effect."

35. Proviso to sub-section (1) does lay down that a claim
of juvenility may be raised at any stage, even after final disposal
of the case. In the case of Gurpreet Singh v. State of Punjab,
G (2005) 12 sec 615, the claim ofjuvenility under Juvenile Justice
Act, 1986 was raised for the first time before this Court. It was
held:
"It appears that this point was not raised either before the
trial court or the High Court. But it is well settled that in such
H
PAWAN v. STATE OF UTTARANCHAL [R.M. LODHA, J.] 491

"""\
an eventuality, this Court should first consider the legality A
or otherwise of conviction of the accused and in case the
conviction is upheld, a report should be called for from the
trial court on the point as to whether the accused was
juvenile on the date of occurrence and upon receipt of the
report, if it is found that the accused was juvenile on such B
date and continues to be so, he shall be sent to juvenile
home. But in case it finds that on the date of the
.. ~
occurrence, he was juvenile but on the date this Court is
passing final order upon the report received from the trial
court, he no longer continues to be juvenile, the sentence c
imposed against him would be liable to be set aside.
Reference in this connection may be made to a decision
of this Court in Bhoop Ram v. State of U.P.(1989) 3 SCC

-- 'I
1, in which case at the time of grant of special leave to
appeal report was called for from the trial court as to
whether the accused was juvenile or not which reported
D
that the accused was not a juvenile on the date of the
occurrence but this Court, differing with the report of the
trial court, came to the conclusion that the accused was
juvenile on the date the offence was committed and as he
E
was no longer a juvenile on the day of judgment of this
Court, sentence awarded against him was set aside,
though the conviction was upheld."
...
.. 36. A benefit of Act, 2000 was sought for the first time by
claiming juvenility before this Court in the case of Murari Thakur F
and Another v. State of Bihar, AIR 2007 S.C. 1129 but negated.
This Court said:

"Learned counsel for the appellant firstly submitted that the
appellants are entitled to the benefit of the Juvenile Justice
G
(Care and Protection of Children) Act, 2000 as amended
by the amendment of 2006. We are of the opinion that this
point cannot be raised at this stage because neither was
it taken before the Trial Court nor before the High Court.
Even otherwise we do not find any merit in the said
H
492 SUPREME COURT REPORTS [2009) 3 S.C.R.

A contention. The question of age of the accused appellants
,..
is a question of fact on which evidence, cross-examination,
etc. is required and, therefore, it cannot be allowed to be
taken up at this late stage. Hence, we reject this
submission of the learned counsel for the appellant."
B
37. The question is : should an enquiry be made or report
be called for from the trial court invariably where juvenility is
claimed for the first time before this Court. Where the materials
placed before this Court by the accused, prima facie, suggest
that the accused was 'juvenile' as defined in the Act, 2000 on
c the date of incident, it may be necessary to call for the report
or an enquiry be ordered to be made. However, in a case
where plea of juvenility is found unscrupulous or the materials
lack credibility or do not inspire confidence and even, prima
facie, satisfaction of the court is not made out, we do not think _,
D any further exercise in this regard is necessary. If the plea of •
juvenility was not raised before the trial court or the High Court
and is raised for the first time before this court, the judicial
conscience of the court must be satisfied by placing adequate
and satisfactory material that the accused had not attained age
E of eighteen years on the date of commission of offence; sans
such material any further enquiry into juvenility would be
unnecessary.
;.
38. As regards A-2, two documents are relied upon to
F show that he had not attained age of eighteen years on
September 25/26, 2003. His age (17 years) mentioned by the
trial court at the time of recording his statement under Section
313 Cr.P.C. is tentative observation based on physical
appearance which is hardly determinative of age. The other
document is the school leaving certificate issued by
G Headmaster, Prem Shiksha Niketan, Bilaspur, Rampur which
does not inspire any confidence as it seems to have been
issued on October 16, 2006 after A-2 has already been
convicted. Primary evidence like entry from the birth register
has not been produced. We find it difficult to accept Annexure
H
PAWAN v. STATE OF UTIARANCHAL [R.M. LODHA, J.] 493

-·I
P-3 (school leaving certificate) relied upon by counsel. For A- A
1, the only document placed on record is a school leaving
certificate which has been procured after his conviction. In his
case also, entry from the birth register has not been produced.
We are not impressed or satisfied with such material. There
being no satisfactory and adequate material, prima facie, we B
are not persuaded to call for report about the age of A-1 and
_.._ A-2 on the date of commission of offence.

39. In the light of our discussion aforenoted , we find that
the view taken by the High Court is the only possible view on a
proper appraisement of evidence and no other view is possible
c
and it has not committed any error in upholding the conviction
of the accused persons for the offences punishable under
Sections 302/34; 376 and 201/34 IPC. The sentence awarded
to them calls for no interference.
'i D
40. In the result, all the four appeals fail and are dismissed.
Accused Babu is on bail. His bail bonds are cancelled. We
direct the trial court to take immediate steps for putting him
back in jail to serve out the remaining part of the sentence.
E
RP. Appeals dismissed
,~

..
~